author: Pee Curiam,

text:
    Deitrich, Appellant, v. Kettering.

      Evidence—Offer for specific purpose—Vicious dog—Animals.

    A party cannot offer evidence for a specific purpose and complain when it is rejected that it was legitimate for another and distinct purpose.
    Where in an action of trespass to recover damages for injuries sustained by the bite of a dog, the trial court struck out testimony which was admitted under a specific offer to prove that the dog attacked a witness before the plaintiff was bitten and of this the defendant had notice, the plaintiff cannot in the Supreme Court maintain that the testimony was admissible to show the general behavior of the dog.
    Argued Feb. 14, 1905.
    Appeal, No. 210, Jan. T., 1905, by plaintiff, from judgment of C. P. Lebanon Co., Sept. T., 1901, No. 116, on verdict for defendant in case of Cyrus Deitrich v. Jacob Kettering.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.'
    Affirmed.
    Trespass to recover damages for personal injuries sustained by the bite of a dog alleged to have been vicious.
    At the trial when Charles Kratzer, a witness for plaintiff, was on the stand, he was asked this question :
    Mr. Ulrich: We desire to prove with this witness that the dog attacked him, and that he brought notice home to Mr. Kettering.
    Mr. Capp : Objected because it does not state when it was.
    Mr. Ulrich: Before this injury the attack upon Mr. Deitrich—

      The Court: Proceed.
    “ Q. Mr. Kratzer, did this dog attack you or attempt to attack you at any time ? A. No, sir, he did not; not outside of the fence. He many a time jumped up at the fence that I passed, and barked loud, but not outside; that is, he never took hold of me. Q. Was Mr. Kettering there at the time? A. Been in the yard different times ; yes, sir. Q. When the dog growled at you and jumped at you ? A. Yes, sir. That is, understand, not at me; he was inside of the fence, and I was out."’
    Cross-examination by Mr. Capp : “ Q. Tell us in your own way what the dog did when you went by the place. A. Oh, well, he jumped up at the fence, you know, and reached outside of the fence and barked, you know, as though he was in the act of getting hold of me; but he never did, understand; I was outside and he was in. Q. He was a young dog, wasn’t he ? A. I don’t know how old he was. He was grown out, I think, because he was a dog very near as high as these boxes here. I judged him to be grown' out, and probably two or three or four years old. Q. He did not jump up against the fence in such a way as to make an effort to break through ? A. I would rather say it was. I think if the fence had been frail, and it would not have stood the jumping against, I think he would have come out and got at me; I think he would. Q. How often did this occur ? A. I don’t know. It occurred repeatedly. I passed there often. I would not say how often it occurred. Q. Where was Mr. Kettering ? A. Sometimes he was in the yard; he ain’t always there. Q. Relate to us an occurrence that Mr. Kettering was in the yard. Relate to us one occurrence that Mr. Kettering was there. A. I could not just tell you the time, you know, but I know that he had often been in his yard ; probably sitting on the back porch or standing in the yard that the dog jumped up against the fence when I passed ; I could not exactly tell whén. Q. Relate to us one occurrence that Mr. Kettering was there, and tell us what the dog did at that time. A. I know at one time that he was sitting on the back porch, the dog was laying in the yard close by the fence, probably three feet near the fence, and the dog jumped up at the fence ; of course, I walked on ; he did not hurt me. Q. How high was this fence ? A. Oh, well, probably four feet high. Q. What kind of a fence was it? A. An iron fence. Q. What is the size of the dog ? A. Well, the dog may measure— Q. An ordinary shepherd dog, isn’t it? A. Well, I think he was a little larger than the ordinary shepherd dog; he may measure probably two feet and a half ; I don’t know; I never measured him ; but he is larger than the ordinary shepherd dog. Q. That is the only occurrence that' you say Mr. Kettering was on the porch? A. Yes. Q. When was that, Mr. Kratzer ? A. I didn’t keep a date. Q. Which one of these occurrences were prior to the time that Deitrich was bitten, if any? A. I could not tell you that. Q. Then you could not tell whether this occurred before or after the accident to Deitrich ? A. I could not; no, sir.”
    Redirect examination by Mr. Ulrich : “ Q. Don’t jtou know whether this occurred before or after Mr. Deitrich’s accident ? A. No, sir ; I don’t know. I am not positive whether it was before or afterwards. Q. This accident occurred this last July a year ago, that was 1901 ? A. Yes ; I remember the time the accident occurred, but I would not say; I didn’t keep a note, you know, whether this was before or afterwards.”
    Mr. Capp : I move to strike out this' testimony as not conforming to the offer, in this that the witness cannot state whether these occurrences were before or after Deitrich complains of.
    The Court: We will permit this testimony to stand for the present. Exception to the defendant. We may rule on it later on in the case, however, definitely.
    After the testimony was closed the court ruled as follows :
    We will allow the motion which was made as to the striking out the testimony of Charles Kratzer. Exception to the plaintiff.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was ruling on evidence as above, quoting the bill of exceptions.

      George B. Woomer, with him George B. Ulrich, for appellant,
    cited : Mann v. Weiand, 81* Pa. 243; McConnell v. Lloyd, 9 Pa. Superior Ct. 25; Todd v. Inhabitants of Rowley, 90 Mass. 51; Maggi v. Cutts, 123 Mass. 535; Kennon v. Gilmer, 131 U. S. 22 (9 Sup. Ct. Repr. 696); Zartman v. Spangler, 21 Pa. Superior Ct. 647.

      Thomas H. Gapp, with, him Grant Weidman, for appellee,
    cited: Mann v. Weiand, 81* Pa. 243; Snyder v. Patterson, 161 Pa. 98; Sylvester v. Maag, 155 Pa. 225; Gaines v. Com., 50 Pa. 319; Young v. Edwards, 72 Pa. 257.
    June 22, 1905:
   Pee Curiam,

This action -was to recover damages for an injury caused by the bite of a vicious dog. The only assignment of error is to the order of the court striking out testimony which was admitted under a specific offer to prove that the dog attacked the witness before the plaintiff was bitten, and that of this the defendant had notice. The witness was unable to fix the time of the occurrence, and the testimony did not come up to the offer under which it was admitted. To the argument now made that the testimony was admissible to show the general behavior of the dog, it is a sufficient answer that it was not offered for that purpose. “ A party cannot offer evidence for a specific purpose and complain when it is rejected that it was legitimate for another and distinct purpose : ” Young v. Edwards, 72 Pa. 257.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Reinoehl’s Estate.

      Decedents’ estates—Advancement—Parent and child.

    An advancement by a parent to a child is always a question of intention to be determined by what took place at the time, and in the absence of evidence as to this by the attending circumstances.
    Where an auditor finds both from the declarations of a parent made at the time and from the surrounding circumstances that an advancement and not a gift or loan was intended, such finding, when approved by the' court below, will not be reversed except for manifest error.
    Argued Feb. 14, 1905.
    Appeal, No. 246, Jan. T., 1904, by Emma M. Reinoehl, Executrix, from decree of O. C. Lebanon 'C61,“'í\íay T., 1903, No. 6, dismissing exceptions to auditor’s report”' iii Estate of George H. Reinoehl, deceased.'
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ”.
    Affirmed.
    Exceptions to report of C. V. Henry, Esq¿ auditor.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Ira Jewell Williams, with him James 8. Alcorn and 8impson Brown, for appellant.

      F. E. Meily, for appellee was not heard.
    June 22, 1905 :
   Per Curiam,

Advancement is always a question of intention to be determined by what took place at the time and, in the absence of evidence as to this, by the attendant circumstances. The auditor found both from the declarations of the parent made at the time and from the surrounding circumstances that an advancement and not a gift or loan was intended. This finding, approved by the court, we should not disturb unless convinced that it was plainly erroneous. We find nothing in the testimony that leads us to doubt its correctness.

The decree of the court is affirmed at the cost of the appellant.


text:
    Wiszginda, Appellant, v. Schuylkill Traction Company.

      Negligence—Street railways—Infant—Nonsuit.

    In an action against a street railway company to recover damages for personal injuries, it appeared that the plaintiff, a boy nine years old, ran some distance on the pavement of a city street to overtake a brewery wagon and at the middle of a block suddenly turned from the pavement to the street, ran behind the wagon to the car track and was instantly struck by a car. The motorman, called as the plaintiff’s witness,, testified that he first saw the boy when he ran on the track five or six feet in front of the car, and all of the witnesses agreed that he was struck immediately after coming from behind the wagon. The car was not running at an undue speed. Held, that a nonsuit was properly entered.

      Argued Feb. 14, 1905.
    Appeal, No. 273, Jan. T., 1904, by plaintiff, from order of C. P. Schuylkill Co., July T., 1901, No. 136, refusing to take off nonsuit in case of John Wiszginda by his next friend and father, George Wiszginda, v. Schuylkill Traction Company.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Shat, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusing to take off nonsuit.

      O. W. Brvmm, with him Win. K. Shissler, for appellant.

      Thomas Learning, with him MacHenry Wilhelm, for appellee.
    June 22, 1905:
   Per Curiam,

The facts upon which a nonsuit was granted were these: A boy some nine years of age ran some distance on the pavement of a city street to overtake a brewery wagon and at the middle of a block suddenly turned from the pavement to the street, ran behind the wagon to the car track and was instantly struck by a car. The motorman, called as the plaintiff’s witness, testified that he first saw the boy when he ran on the track five or six feet in front of the car, and all of the witnesses agree that he was struck immediately after coming from behind the wagon. The youth of the plaintiff did not relieve him from the burden of proving negligence. . Of this there was no sufficient proof. The speed of the ear was not an undue speed at the middle of a block and it did not cause the accident. The sudden and unexpected act of the plaintiff gave the motorman only a second of time in which to stop the car.

The judgment is affirmed.


text:
    Gaynor v. Quinn, Appellant.

      Equity■—Equity practice—Form of findings of fact and law.

    The court of common pleas in trying an equity case should express its findings of fact and law in separate and numbered clauses or paragraphs so as to present each one independently and distinctly.

      Trusts and tmstees—Real estate—Title—Equity—Findings of fact.

    On a bill in equity to establish a trust as to real estate alleged to have been acquired by the use of plaintiff’s money for the joint use of herself and one of the defendants in whose name the title stood, the court found as a fact that the plaintiff by agreement with the defendant had waived her right to receive certain money duo on life insurance policies which had been transferred to her, in order that the money might be used to pay incumbrances on the real estate in question, or to secure title thereto in the event of its sale, and that the money had been so used to acquire title for the joint benefit of the parties. These findings rested on competent testimony. Held, that the decree in favor of plaintiff should be sustained.

      Contract—Consideration—Surrender of good claim—Compromise.

    It is a sufficient consideration for a contract that one of the parties to the contract gave up, by way of compromise an apparently good claim.
    Argued Feb. 15, 1905.
    Appeal, No. 358, Jan. T., 1904, by defendants, from decree of C. P. Schuylkill Co., Sept. T., 1903, No. 4, on bill in equity in case of Mary E. A. Gaynor et al. y. Elizabeth G. Quinn et al.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity to enforce a trust, and for an account. Before Marr, J.
    The court entered a decree in accordance with the prayer of the bill.

      Error assigned was the decree of the court.

      Samuel K. Kaercher and Edmund D. Smith, with them Daniel W. Kaercher and John E. Whalen, for appellants. '

      James B. Reilly and A. W. Schalclc, with them K. 0. Bechtel, for appellee.
    June 22, 1905 :
   Per Curiam,

The failure of the court to follow the practice indicated in Schmidt v. Baizley, 184 Pa. 527, and Pittsburg Stove & Range Co. v. Pennsylvania Stove Co., 208 Pa. 37, to express the findings of fact and law in separate and numbered clauses or paragraphs, so as to present each one independently and distinctly, has materially increased our labor in reviewing this voluminous record. The bill was to establish a trust as to real estate alleged to have been acquired by the use of the plaintiff’s money for the joint use of herself and Elizabeth G. Quinn, the principal defendant, in whose name the title'stands. The material facts alleged in the bill and found by the court are that the plaintiff by agreement Avith the defendants waived her right to receive the money due on life insurance policies which had been transferred to her, in order that the money might be used to pay incumbrances on the real estate or to secure title thereto in the event of its sale; that the money was so used and that by its use the title Avas acquired by Mrs. Quinn for their joint benefit. These findings rest on competent testimony, and we see no reason for disturbing them. They are controlling. It is needless to consider whether the plaintiff had a valid claim to the whole of the insurance money. It was a sufficient consideration for the agreement that she gave up, by way of compromise, an apparently good claim.

The decree is affirmed at the cost of the appellant.


text:
    Bright’s Estate.

      Will—Codicil—Probate.

    Testatrix directed that her “dwelling house, lot and appurtenances” should be appraised, and that a son named should have .the option to take it at the appraisement, and that in the event of his declining the option should be extended to her other children in the order of their ages. Eight months after the date of the will and twenty-four days before her death she signed a paper addressed to the son named in the will as follows: “I have bequeathed to my son (naming him) the house I now live in for the sum-of one thousand dollars as expressed in my will written by Judge Marr.” Eighteen months after the will was proved the register admitted this writing to probate as a codicil. On appeal from the register the orphans’ court by agreement heard the case on its merits having before it only the will and the unattached writing. The court held (1), that there was nothing to identify the will proved as the will referred to in the writing; (2) that there was nothing to identify the “dwelling house, lot and appurtenances” named in the will as the dwelling house named in the writing; (3) that the declaration in the writing was as to a past act and not of a present intention to make a disposition of the property to take effect after death. Held, that the decree of the court reversing the register should be sustained.
    Argued. Feb. 15, 1905.
    Appeal, No. 306, Jan. T., 1904, by-Hunter F. Bright, from decree of O. C. Schuylkill Co., sustaining appeal from register of wills in estate of Anna B. Bright.
    Before Dean, Fell,' Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from register of wills.
    The opinion of tbe Supreme Court states the case.

      Error assigned was decree sustaining the appeal and in reversing the register of wills.

      MacRenry Wilhelm, with him R. II. Koch and M. M. Burke, for appellant,
    cited: Reichard’s App., 116 Pa. 232; Engle’s Estate, 34 W. N. C. 355; Knox’s Estate, 131 Pa. 220; Gaston’s Estate, 188 Pa. 374; Diehl’s Est., 11 Pa. Superior Ct. 293; Megary’s Est., 206 Pa. 260; Harrison’s Est., 196 Pa. 576; Fosselman v. Elder, 98 Pa. 159.

      Q-eorge M. Roads, for appellees.
    June 22, 1905:
   Per Curiam,

The testatrix provided by her will that her “ dwelling house, lot and appurtenances ” should be appraised and that her son Hunter, the appellant, should have the option to take it at the appraisement, and that in the event of his declining to take it the option should be extended to her other children in the order of their ages. Eight months after the date of her will and twenty-four days before her death, she signed the following writing; “ To Hunter F. Bright, Ashland, Pa. I have bequeathed to my son, Hunter F. Bright, the house I now live in for the sum of one thousand dollars, as expressed in my will written by Judge Marr.” Eighteen months after the will was proved, the register admitted this writing to probate as a codicil. This appeal is from the order of tbe orphans’ court reversing his decision. All technical objections to the proceedings were withdrawn, and it was agreed that the matter should be decided by the orphans’ court on its merits. The court had before it only the will and the unattached writing, and held (1) that there was nothing to identify the will proved as the will referred 'to in the writing; (2) that there was nothing to identify the “ dwelling house, lot and appurtenances ” named in the will as the dwelling house, named in the writing; (3) that the declaration in the writing was as to a past act and not of a present intention to make a disposition of the property to take effect after death. We concur in the conclusion reversing the decision of the register, and the order of the orphans’ court is affirmed at the cost of the appellant.


author: Per. Curiam,

text:
    Commonwealth to use, Appellant, v. The American Bonding Company.

      Guardian and ward—Principal and surety—General guardianship bond— Sale of real estate.

    Where a bond given by a guardian and his surety is on its face a general guardianship bond and it appears that the surety had no knowledge that the bond was intended for any other purpose than that which appeared upon its face, the surety cannot be held liable for the misappropriation by the guardian of the proceeds of the sale of real estate sold by the guardian under an order of court.
    Argued March 13, 1905.
    Appeal, No. 285, Jan. T., 1904, by plaintiffs, from judgment of Superior Court, Feb. T., 1904, No. 20, affirming judgment of C. P. Lycoming Co., March T., 1900, No. 489, on judgment for defendant non obstante veredicto in case of Commonwealth to use of Leila D. Cowles v. The American Bonding Company.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from Superior Court. See Commonwealth v. American Bonding Co., 25 Pa. Superior Ct, 145.
    Beaver, J., filed the following opinion:
    The legal effect of the bond given by the defendant in this case and its liability thereunder for the misapplication of funds arising from the sale of the real estate of the use plaintiff were fully passed upon in Commonwealth v. American Bonding & Trust Co., 16 Pa. Superior Ct. 570.
    Little may be said in addition to what was said when the case was here on the question of the sufficiency of the affidavit, of defense. It was then alleged: “ That the defendant knew that the bond was to be used in an application for the sale of real estate and that the guardian was the agent of the defendant in presenting the bond to the court,” which allegations were specifically denied in the affidavit of defense. These allegations and the denial thereof raised the question of fact necessary to be submitted to a jury.
    On the trial of the case there was no evidence whatever which tended, either directly or indirectly, to charge the defendant with a knowledge of the use of the bond for any purpose other than shown in the application, which was “ for the faithful performance of trust, as guardian of Dora Leila Angle, minor child of Lavina O. Angle, deceased.” The court was, therefore, justified in entering judgment for the defendant, non obstante veredicto. The re-examination of the authorities cited in our former opinion leaves no doubt in our minds as to the correctness of this conclusion.
    Judgment affirmed.

      jError assigned was the judgment of the Superior Court.

      Thomas M. B. Hicks, for appellant.

      Seth T. McCormick, for appellee.
    June 22, 1905 :
   Per. Curiam,

This judgment is affirmed on the opinion of the Superior Court.


text:
    Ferber, Appellant, v. Gazette and Bulletin Publishing Association.

      Libel—Pleading—Evidence—Justification—Charge of crime—Public officer.

    In an action of libel against the publisher of a newspaper by a public officer, where justification has been pleaded, the defendant may show that the statements were true or that he had reasonable ground supported by facts and circumstances to believe them to be true, and that the publication was made in good faith and without malice.
    Although the pleas of “not guilty” and “justification” are apparently repugnant, they may under modern practice be pleaded together.
    Argued March 13, 1905.
    Appeal, No. 308, Jan. T., 1904, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1901, No. 353, on verdict fordefendant in case of H. V. Ferber v. Gazette and Bulletin Publishing Association.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass for libel. Before Hart, P. J.
    At the trial it appeared that plaintiff was a writ server connected with an alderman’s office. In the publication complained of he was charged with being a party with others in a scheme to blackmail. The defense was that the article in question was based on information received from the chief of police, and was published in good faith and without malice.
    Defendant presented, inter alia, the following point:
    6. It is entirely within the bounds of legitimate journalism for newspapers to publish as current news all such matters as involve open violation of law or public misconduct of such-character as justifies police interference, even though the doing so may reflect upon the actors and thus tend to bring them into public disgrace or contempt, and if the jury finds that the publications complained of in this suit were published as current news of such matters as involve open violation of law or public misconduct of such character as justifies police interference, the verdict must be for the defendant, even though such publications may reflect upon the plaintiff. Answer : Affirmed if the jury believe the publications were true or that the defendant had probable cause to believe them to be true.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned, inter, alia, was answer to above point, quoting it.

      J. M. Reilly, with him Edward S. Me draw, for appellant,
    cited: Barr v. Moore, 87 Pa. 385; Conroy v. Pittsburg Times, 139 Pa. 334; Bryant v. Pittsburg Times, 192 Pa. 585; Oles v. Pittsburg Times, 2 Pa. Superior Ct. 130; Ingram v. Reed, 5 Pa. Superior Ct. 550; Collins v. News Co., 6 Pa. Superior Ct. 330; Wallace v. Jameson, 179 Pa. 98; Neeb v. Hope, 111 Pa. 145; Blagg v. Sturt, 10 Ad. & E. (N. S.) 899; Hayes v. Press Co., 127 Pa. 642; Farley v. Ranck, 3 W. & S. 554; Steinman v. McWilliams, 6 Pa. 170; Burford v. Wible, 32 Pa. 95; Gorman v. Sutton, 32 Pa. 247; Smith v. Times Pub. Co., 178 Pa. 481; Rush v. Cavenaugh, 2 Pa. 187; O’Toole v. Post Printing, etc., Co., 179 Pa. 271; Smith v. Stewart, 5 Pa. 372.

      Addison Candor, withs him C. LaRue Munson, for appellee,
    cited: Briggs v. Garrett, 111 Pa. 404; Press Co. v. Stewart, 119 Pa. 584; Urben v. Pittsburg Times, 1 Monaghan, 135; Chapman v. Calder, 14 Pa. 365; Jackson v. Pittsburg Times, 152 Pa. 406; Coates v. Wallace, 4 Pa. Superior Ct. 253; Com. v. Swallow, 8 Pa. Superior Ct. 539.
    June 22, 1905:
   Per Curiam,

We find no error in the record of this case that calls for a reversal. It was submitted with the instruction that the publication charging a public officer with the commission of crimes was libelous, and that the plaintiff was entitled to recover unless it appeared from the evidence that it was substantially true in every material respect or that the defendant had reasonable grounds for belief in its truth, supported by facts and circumstances. The stress of the appellant’s argument is that, since justification had been pleaded, the defendant was not entitled to show that it made the publication in good faith, on reasonable cause and without malice. The pleas were “not guilty ” and “ justification.” These pleas although apparently repugnant, may under modem practice be pleaded together: Peters v. Ulmer, 74 Pa. 402; Drown v. Allen, 91 Pa. 393.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Commonwealth, Appellant, v. Evans.

      Jury—Challenges—Trial—Practice, Q. S.—Acts of March 6, 1901, P. L. 16, and July 9, 1901, P. L. 629.
    Where counsel for defendant in a criminal case, after having examined a juror turns him over to the commonwealth for cross-examination, and the commonwealth accepts the juror without cross-examination, the defendant will not then be allowed peremptorily to challenge him.
    Argued Feb. 21, 1905.
    Appeal, No. 302, Jan. T., 1904, by-plaintiff, from judgment of Superior Court, No. 10, Jan. T., 1904, reversing order of Q. S. Lackawanna Co., Oct. T., 1903, No. 286, overruling peremptory challenge to juror in case of Commonwealth v. David B. Evans.
    Before Mitchell, C. J., Dean, Brown, Potter and Elkin, JJ.
    Reversed.
    Appeal from Superior Court. See Commonwealth v. Evans, 25 Pa. Superior Ct. 239.
    The opinion of the Supreme Court states the case.

      Error assigned was the judgment of the Superior Court.

      Joseph O'Brien, with him William R. Lewis, district attorney, and James H. Torrey, for appellant.

      John E. Seragg, for appellee.
    June 22, 1905 :
   Opinion by

Mr. Justice Brown,

David B. Evans was convicted in the court of quarter sessions of Lackawanna county on an indictment charging him with soliciting a bribe. On appeal to the Superior Court the judgment on the verdict was reversed and a new trial awarded, because the trial court had not allowed the defendant to peremptorily chfillenge the second juror called: Com. v. Evans, 25 Pa. Superior Ct. 239. On this appeal the single question to be considered is the correctness of the view of the Superior Court, that the defendant ought to have been allowed to peremptorily challenge the juror after having turned him over to the commonwealth for cross-examination and it had announced its acceptance of him.

By the Act of July 9, 1901, P. L. 629, the commonwealth and defendant were each entitled to six peremptory challenges on the trial of this indictment, to be exercised alternately as the jurors were called, in the absence of a rule in the court below fixing a different manner for exercising the right of peremptory challenge. The first juror called, having been sworn on his voir dire, was first examined by the commonwealth and passed to the defendant, by whom he was accepted. He was thereupon sworn in the case. The second juror, having been sworn on his voir dire, was first examined by the defendant and, after having been examined by his counsel, was handed over to the commonwealth for cross-examination, no cause for challenge having been developed and the right of peremptory challenge not having been exercised. Without cross-examining the juror, the commonwealth announced its acceptance of him when the defendant immediately insisted upon the right to peremptorily challenge him. To this the court below said: “ When you turned the juror over for cross-examination that meant acceptance,” and the juror was directed to be sworn.

The right to challenge for cause continues until the juror is sworn in the case. If, after examination by the commonwealth on his voir dire, no cause for challenging appears, and the juror is passed to the defendant for cross-examination, from which it does appear that the commonwealth has cause for challenge, he can be challenged by it; and so, if the defendant, in the alternate examination of the next juror called, discovers no cause for challenge, but it is discovered in the commonwealth’s cross-examination of him, the defendant can challenge for cause. But a peremptory challenge is not one for cause. It is one which the law in its humanity gives to an accused to be exercised by him without giving or being able to give any reason why the juror should not serve. This challenge excludes a juror on what may be merely the whim of the accused, so great is the law’s concern that he shall be tried only by those against whom he does not have even a capricious prejudice. “ As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such dislike: ” 4 Black. Com. 353. Though peremptory challenges were not allowed by the common law in the trial of misdemeanors, what is said of peremptory challenges in cases of felonies is equally applicable to those allowed on trials of misdemeanors under our statutes.

In the present case the examination of the juror by the defendant was for the purpose of ascertaining w'hether any cause existed which disqualified him to serve. No such cause was developed and he was passed to the commonwealth to be cross-examined for the same purpose. But the commonwealth was not bound to cross-examine him, and the defendant was not to assume that it would do so as a matter of course. He, therefore, knew that after the juror had passed the ordeal of his examination, the commonwealth might be content to ask no further questions, and to accept him as not being liable to challenge for cause. This is just what happened, and when the juror was so accepted by the commonwealth, the defendant, who had the right in the first instance to challenge without cause—peremptorily—then insisted upon so challenging. To have allowed him to do so would, as is forcefully put by the court below, have given him “ a distinct advantage in excess of what the statute accords him .... and the result would have been precisely the same as if the defendant had been speculating on the chance of saving a challenge.” This is neither in accord with the letter or spirit of the statute which gives an accused this great right of peremptory challenge to be exercised as his whim, fancy or caprice may prompt. While there is no limit to the right to challenge for cause, except the swearing of the juror to serve in the case, the right to the other challenge passes from the accused when he is to be understood as not intending to exercise it. This intention cannot be exhibited more clearly than when, after a fruitless examination to discover cause, he turns the juror over to the commonwealth for cross-examination for the same purpose, without undertaking to exercise his right to challenge without cause. The right to peremptory challenge is a right to be exercised hi rejecting a juror, and the appellant must be understood as not having rejected the second juror when he passed him to the commonwealth. We are, therefore, .of one mind that the court below rightly denied the right to peremptorily challenge that juror.

The judgment of the Superior Courtis reversed. The judgment below is affirmed, and it is ordered that the appellant surrender himself to tire sheriff of the county of Lackawanna to serve that portion of his sentence which had not expired at the time of his admission to bail on his appeal to the Superior Court.


author: Per Curiam:,

text:
    Eckert v. Pennsylvania Trust Company, Appellant.

      Wills—Devise—Estate in fee simple.

    Testator after having made devises to his two sons out of the residue of his estate directed as follows: “I give, devise and bequeath to my two sons above named their respective shares aforesaid of the final residue of my estate to hold the same to said sons respectively, their respective heirs, executors, administrators and assigns, subject during their respective minorities, to the provisions hereinbefore and hereinafter contained.” By a subsequent clause he directed as follows: “If any or either of my said children or two last named grandchildren shall die without issue at his, her or their respective deaths, or leaving such issue then living none of whom shall live to attain the age of twenty-one years then and in any and every such case it is my will,” etc. Held, that a son upon reaching the age of twenty-one years was vested with an absolute fee simple in the property devised to him.
    Argued March 14, 1905.
    Appeal, No. 43, Jan. T., 1905, by defendant, from judgment of C. P. Berks Co., Dec. T., 1900, No. 5, on verdict for plaintiffs in case of Thomas T. Eckert, Reading Trust Company, trustee for the estate of Emma B. Hill, and Emma B. Hill v. Pennsylvania Trust Company et al.
    Before Dean, Fell, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Summons in partition.
    Verdict for plaintiffs subject to question of law reserved.
    On a rule for judgment for defendants, non obstante veredicto, Endlich, J., filed the following opinion :
    The single question to be determined in the disposition of these rules is whether, under the will of Jacob W. Seitzinger, his son Franklin, after reaching the age of twenty-one years and after appraisement, etc., as directed in said will, liad an absolute interest in his share of the residue of the testator’s estate or an interest defeasible upon his death without issue living. Tf the former, it passed to his widow, Joanna C. Eckert, to whom he left his entire property, and the verdict directed at the trial was right. If the latter, then Joanna C. Eckert was * never a tenant in common together with the remaining parties to this action of the property of which partition is sought, and the defendants are entitled either to judgment notwithstanding the verdict or to a new trial.
    The will of Jacob W. Seitzinger is a very lengthy one, drawn, as pointed out in Newbold v. Boone, 52 Pa. 167, 176, by an eminent professional hand. In the copy submitted the paragraphs have, for the sake of convenience, been numbered from 1 to 48, and may be referred to according to that numbering, although it does not appear in the original. The testator died twenty-six days after the will was made. He liad at the date of the will several daughters, two sons (Jacob, aged eighteen, and Franklin, aged eleven), a grandson (aged eleven, who died in 1859, under twenty-one years old), and a granddaughter (aged six years). All these, and his widow (who died in 1866), survived him. Ever since the death of Franklin, in 1868, the parties concerned treated his widow as a co-owner of the property embraced in the residue to the extent of her husband’s proportion therein liad he lived.
    The directions as to the residue begin in paragraph 20. In that and the next succeeding paragraphs, 21, 22 and 23, the testator (providing for a period of management by his executors with a view to payment of his debts), defines how the “ residue ” shall be made up and how it shall be divided into equal twelfth parts. In paragraph 24 he orders that two twelfth parts shall be conveyed or assigned to each of his two sons respectively and their respective heirs, two twelfth parts to the trustees of the shares of three daughters in his estate, one twelfth part to the trustees of his granddaughter’s share, and one twelfth part to the trustees to whom he has already given a legacy in trust for his grandson. Next comes a series of paragraphs, 25 to 31, in which he enumerates, by way of restating all that he intends to go to each of the beneficiaries, just what the share of each under the entire will shall consist of; directing in paragraph 31 that the several shares thus defined shall be subject to deduction for any indebtedness due to the testator at his death by the respective beneficiaries, and following that with the declaration, in paragraph 33, that the designation of the respective portions of his estate, thus described, “ as the shares of my respective children and grandchildren,” is not to be understood as defining the “ duration or character ” of the interests to be taken by them “ as the same are hereinafter specified.” Then he goes on, in a series of paragraphs, to “ specify ” the duration and character of the interests to be taken by his various beneficiaries in their shares. In paragraph 34 he “ specifies ” his daughters’ and granddaughter’s shares as separate life interests with power of testamentary appointment subject to certain benefits to surviving husbands, etc. And then comes paragraph 35, whose purpose it is to “ specify ” the “ duration and character ” of the interests of the sons, and which is as follows :

      “ I devise and bequeath to my two sons above named their respective shares aforesaid of the final residue of my'estate to hold the same to said sons respectively, their respective heirs, executors, administrators and assigns, subject during their respective minorities to the provisions hereinbefore and hereinafter contained.”
    Here is an unmistakable announcement that Franklin is to take an absolute interest in his share, except as qualified by the subjecting clause. The effect of the words “ during their respective minorities ” in that clause is necessary to limit to the remainder of Franklin’s minority the application and operation of anything in the will, preceding or following paragraph 35, by way of restriction or impairment of the absolute interest given him. Expressio unius est exclusio alterius. In paragraph 36, relating to the share of his grandson, the testator expresses an exactly similar purpose in language somewhat more ample because of the interposition of trustees during minority. The grandson was six days younger than Franklin. Surely the testator cannot be supposed to have meant to invest this grandson with the absolute ownership of his share at twentjr-one, and continue his son’s interest in the share set apart for him liable to defeasance beyond that age. On the contrary there is discernible throughout the will a studied purpose on the part of the testator to give to his sons (or perhaps, in view of the circumstances pointed out in Newbold v. Boone, 52 Pa. 167,174, it might be more accurate to say to his younger children, who were his sons), estates of inheritance ; carefully and persistently discriminating in this respect between them and his daughters (or older children), and suspending the full vesting of their shares in the sons and their full control over them only during the pendency of the temporary management of his estate with a view to the payment of his debts and during the respective sons’ minorities. So in the 13th and 14th paragraphs, the devises are to Jacob and Franklin respectively in fee, with retention of control to the executors during minority, etc. In the' 15th paragraph he bequeaths to Franklin absolutely $9,000, to be raised out of the residuary estate, “ to be paid to him.” on majority, and “ to be subject in the meantime to the provisions hereinafter contained,” etc. Again in the 24th paragraph, after providing for the ascertainment' of the residuum, he directs his executors to convey and assign two twelfth parts to each of his sons respectively “ and their respective heirs,” whilst his daughters’ shares are ordered to be transferred to their trustees. When he comes to restating in detail, in paragraphs 25 to 31, what he understands the share of each beneficiary in his entire estate to consist of, he enumerates, in paragraph 31, as making up the share of his son Franklin the devise in paragraph 14, the bequest in paragraph 15, and the two twelfth parts of the final residuum directed to be transferred to him in paragraph 24. Of course he must be understood as referring to all of these according to the qualities previously impressed upon them. See Klapp’s Est., 19 Pa. Superior Ct. 150, 154. And so, as to his other son, in paragraph 30. The subsequent specification, in paragraph 35, of the duration and character of the sons’ interests in the shares thus made up puts all the items composing them upon the same level, subjects them all to the same qualification by reference to the preceding and succeeding provisions in the will, and restricts the operation of these to the periods of the sons’ respective minorities. Moreover, the reference' is to “ the ” provisions, which necessarily means all the provisions (see Bakes v. Reese, 150 Pa. 44, 46) of the will capable of affecting the absoluteness of the gifts to the sons, their control, ownership and devolution. To give due effect to the testator’s language and intent all must, if possible, be brought in. It would seem, therefore, to follow with unavoidable necessity that wlien in paragraph 43 the testator provides that upon the death of any of his enumerated children or grandchildren without leaving issue, or leaving issue who shall not survive to maturity, the share of such decedent shall go to increase the shares of the other children and grandchildren, that provision must, so far as Franklin’s share is concerned, be understood as referring to his death before reaching the agé of twenty-one. So understood it is perfectly consistent with the terms of all the devises and bequests made to him, and the general intent disclosed in those provisions, giving him but a qualified interest in their subject-matter during minority to become absolute upon maturity. ,On the other hand, it is manifest that to treat the 43d paragraph as defeating Franklin’s interest in anything that had been left to him, upon the contingency of his dying without issue, etc., at any age, is to construe it as derogating from the previously expressed intent. The rule is too well established to require the citation of authorities, that whilst of two contradictory provisions relating to the same subject-matter, the first must give way and the last takes effect, the inconsistency between the two must be clear and irreconcilable, and that it is the business of the interpreter to read, if possible, all the provisions in pari materia together and construe them as an harmonious whole. Standing alone, to be sure, there could, since Newbold v. Boone, 52 Pa. 167, be no uncertainty about the effect of the 43d paragraph. But it cannot be successfully maintained that the latter may not be read together with, or into, the 35th paragraph in so far as it is capable of applying to the same. The language of the 43d paragraph is as follows :
    “ If any or either of my said children or two last named grandchildren shall die without issue living at his, her or their respective deaths, or leaving such issue then living, none of whom shall live to attain the age of twenty-one years, then and in any and every such case it is my will that the shares or portions of my estate of him, her or them so dying shall go to increase the said shares of my other children (except my daughter Elizabeth) and two last-named grandchildren in the last-mentioned proportions, that is to say, the share of each of my said children other than Elizabeth to be twice as great as those of my said two grandchildren, the children of my said deceased daughter, under and subject in each case to the same respective trusts and limitations hereinbefore expressed and declared.”
    It is contended that, inasmuch as this provides for the dying under age of the children of the testator’s children and even of those of his enumerated grandchildren, it would be an absurdity to attempt to read this provision into paragraph 35 as a proviso to it, beginning with the words “ subject during their respective minorities.” It is said that the period thus designated cannot by any possibility be made to comprehend the time and contingencies contemplated in paragraph 43, and that, therefore, the language of the latter cannot be fitted into that of the former. It must, however, not be overlooked that it is the substance and effect of the language used that we are concerned with rather than the mere sequence of its phraseology. See Ferry’s App., 102 Pa. 207 ; Klapp’s Est., 19 Pa. Superior Ct. 150. Drawn in compact and artistic terms the 43d paragraph provides in one sentence, of broad generality, for a number of things: (1) for the death of testator’s sons without leaving any issue; (2) for the death of testator’s sons leaving issue who shall not live to maturity; (3) for the death of three of the testator’s daughters (for clearly Elizabeth is not included among “ my children ” as first used in it) without leaving any issue ; (4) for the death of those daughters without leaving issue who shall live to maturity; (5) for the death of certain grandchildren without leaving any issue; and (6) for their death without leaving issue who shall live to maturity. In crowded terms it directs what in each of these cases is to become of the shares left by the, will to the decedent. In order to apply this direction to each of the several beneficiaries or classes of beneficiaries, it is of course not only permissible but necessary to separate the complex provision into its various constituent parts, reddendo singula singulis. As pertinent to the shares spoken of in paragraph 35, it may therefore be read as follows :
    “If ... . either of my said (sons) .... shall die without issue living at his ... . (death), or leaving such issue then liying none of whom shall live to attain the age of twenty-one years .... then .... it is my will,” etc.
    Inserting this provision in paragraph 85, the clause “ subject,” etc., would read thus:
    “ Subject during their respective minorities to the provisions hereinafter contained that if either of my said sons shall die without issue living at his death, or leaving such issue then living,” etc.
    Now it seems too manifest for discussion that the language “ subject during their respective minorities to the provisions hereinafter contained that if either .... shall die without issue,” etc., is exactly equivalent to saying “ subject to the provisions hereinafter contained that if either . . . . shall die during minority without issue,” etc. That transposition may, therefore, be made, and the clause so read: and so read, there is not the slightest difficulty or incongruity about inserting paragraph 43 into paragraph 35,—with the effect above indicated the two paragraphs together providing:
    “ I devise and bequeath to my two sons .... their respective shares aforesaid .... to hold the same to my said sons respectively, their respective heirs, executors, administrators and assigns (i. e., absolutely) .... subject to the provisions . . . . hereinafter contained that .... if either .... shall die during minority without issue living at his death, or leaving such issue then living none of whom shall live to attain the age of twenty-one years, then it is my will, ” etc.
    Under this devise, Franklin, upon reaching the age of twenty-one years and after appraisement, etc., as directed by the will, was vested with an indefeasible interest in the property here in question, which passed to his widow by his will.
    The rules to show cause are discharged.

      Error assigned was in entering judgment on the verdict.

      Oyrus G. Derr and John G.-Johnson, with them Benjamin E. Dettra, for appellants,
    cited: Fahnestock’s Estate, 147 Pa. 327; Bakes v. Reese, 150 Pa. 44; Hitchcock v. Hitchcock, 35 Pa. 393; Walker v. Walker, 28 Pa. 40; Rewalt v. Ulrich, 23 Pa. 388; Malone v. Dobbins, 23 Pa 296; German v. German, 27 Pa. 116; Stickle’s App., 29 Pa. 234.

      Jefferson Snyder, of Snyder Zieber, for appellees,
    cited: Caldwell v. Skilton, 13 Pa. 152; McCullough v. Fenton, 66 Pa. 418; Morrison v. Truby, 145 Pa. 540; Mitchell v. Ry. Co., 165 Pa. 645; Schoonmaker v. Stockton, 37 Pa. 464.
    June 22, 1905:
   Per Curiam:,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


author: Me. Justice Brown,

text:
    Becker, Appellant, v. Philadelphia.

      Negligence—Municipalities—Defect in sidewalk—Contributory negligence— Evidence—Question for jury.

    In an action by a woman to recover damages for personal injuries sustained by a fall in a hole on a sidewalk in a city, it appeared that the accident occurred about eleven o’clock in the morning. The hole was about five feet from the curb line, and was nineteen inches long and eighteen inches wide. A tree had formerly stood there, but had been cut down several months before. Plaintiff had no knowledge of the hole. Just before she reached the pavement in which the hole existed, a crowd of twenty-five or thirty men approached her with suit cases and bags in their hands. Plaintiff was carrying a large market basket and a butter kettle. The crowd separated and allowed her to pass through, and almost immediately after emerging from the crowd she stepped into the hole and fell. On her examination in chief she stated that she stepped into the opening almost the instant she got through the crowd that had concealed it from her. On cross-examination she gave the distance as six or eight feet, after repeatedly saying she did not know what it was. Held, that it was error to enter a nonsuit, and that the jury should have been instructed that if they believed, after plaintiff had passed through the crowd she had an opportunity to see the opening, and by the exercise of ordinary care in looking where she was going, ought to have avoided it, she could not recover; but that if she stepped into it just as she*got through the crowd, without having had an opportunity to see it, or if, burdened as she was, she stepped into it after having emerged from the crowd, and, under the circumstances, could not be reasonably expected to have seen it before stepping into it, her negligence was not a bar to her right to recover.
    Argued March 20, 1905.
    Appeal, No. 26, Jan. T., 1905, by plaintiff, from order of C. P. No. 4, Phila. Co., Dec. T., 1901, No. 239, refusing to take off nonsuit in case of Charles Ell-wood Becker and Margaret Becker, his wife, v. City of Philadelphia.
    Before Dean, Fell, Brown, Mestrezat, and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Eugene Raymond, for appellant.
    Under the circumstances and facts of this case, any question of plaintiff’s contributory negligence, and all conflicts of testimony, whether of the same or different witnesses, are questions of fact for the jury : Ely v. Railway Co., 158 Pa. 233; Keng v. B. & O. R. R. Co., 160 Pa. 644; Arnold v. Penna. R. R. Co., 115 Pa. 135; Glase v. Phila., 169 Pa. 488; Gray v. Penna. R. R. Co., 172 Pa. 383; Van Steuben v. Central R. R. Co., 178 Pa. 367; Hunterson v. Traction Co., 205 Pa. 568; Vandevort v. Steel & Iron Co., 194 Pa. 118; Wolfe v. Penna. R. R. Co., 22 Pa. Superior Ct. 335; Laib v. Penna. R. R. Co., 180 Pa. 503; Brown v. White, 206 Pa. 106; Bruch v. Phila., 181 Pa. 588; Rusterholtz v. R. R. Co., 191 Pa. 390; McCracken v. Traction Co., 201 Pa. 378; Butcher v. Phila., 202 Pa. 1; Glading v. Phila., 202 Pa. 324; Iseminger v. York Haven Water, etc., Co., 206 Pa. 591; McHugh v. Kerr, 208 Pa. 225.

      Charles E. Bartlett, with him Joseph S. MaeLaughlin, assistant city solicitor, and John L. Kinsey, city solicitor, for appellee.
    When the plaintiff’s admissions on cross-examination establish contributory negligence, a compulsory nonsuit should be ordered, even though plaintiff’s testimony in chief might have warranted a submission of the case to the jury: Butler v. R. R. Co., 126 Pa. 160; Lynch v. Erie, 151 Pa. 380.
    Plaintiff’s testimony in chief discloses nothing which might have warranted the submission of the case to the jury: Barnes v. Sowden, 119 Pa. 53; Hoag v. R. R. Co., 85 Pa. 293; King v. Thompson, 87 Pa. 365; Robb v. Connellsville Boro., 137 Pa. 42; Stackhouse v. Vendig, 166 Pa. 582; Shallcross v. Phila., 187 Pa. 148; Sickels v. Phila., 209 Pa. 113; Easton v. Phila., 26 Pa. Superior Ct. 517.
    June 22, 1905 :
   Opinion by

Me. Justice Brown,

About eleven o’clock on the morning of October 12, 1901, Margaret Becker, while walking on South Broad street, in the city of Philadelphia, a little north of Lombard street, stepped into an opening in the pavement, fell and was injured. This opening was in front of property No. 423, about five feet from the curb line, and was nineteen inches long and eig'hteen inches wide. A tree had formerly stood there, having been one of a row planted along the east side of Broad street from Pine to Lombard, but which had been cut down some time before.

If nothing more than the foregoing had been developed on the trial, the judgment of nonsuit could not be disturbed, for, clear as the evidence of the city’s negligence may have been, the plaintiff was as clearly guilty of contributory negligence, if she stepped into the opening, which, by the exercise of ordinary care in walking up the street, she was bound to see and avoid. But negligence is always want of care under the circumstances, and the question on this appeal is, whether, under those surrounding the plaintiff’s fall, the court correctly held that the only inference to be drawn from them was that she had contributed by her own negligence to her injuries, and could not, therefore, recover.

What were the circumstances connected with the plaintiff’s fall? Just before she reached the pavement in front of 423 South Broad street a crowd of young men—twenty-five or thirty—approached her, carrying suit cases and bags in their hands. They obstructed her view of the pavements in front of her, in one of which was the opening into which she stepped a moment afterwards. There is no evidence that she knew it ■was there, though it had existed for several months. She was carrying a large market basket and a butter kettle. The crowd separated and allowed her to pass through it, and almost immediately after she emerged from it she stepped into the hole and fell. Her testimony in chief was : “ Q. State what happened to you after you crossed Lombard street. A. When I got three or four doors above Lombard street I met a lot of men going to some place or other, I suppose. Q. About how many of them ? A. About twenty-five or thirty. Q. Were they coming towards you ? A. Yes, sir. Q. What happened when they got to you; what did they do ? A. They separated and I went in between them. Q. Then what happened to you personally ? A. Then I fell. I got my foot fastened in that hole and fell.” It is true that in her cross-examination . she said the crowd had passed her about a couple of yards— six feet—when she fell. But when pressed to be more accurate, she stated: I don’t want to say. I don’t know. I didn’t measure.” It is clear from this that the witness was not able to say. how many feet the crowd had passed her when she fell. While passing through it and when she emerged from it she had a right to assume that the pavement ahead of her was reasonably safe: Bruch v. Philadelphia, 181 Pa. 588; and she was not required the instant the crowd had passed her to stop before proceeding further to see that there was no danger before her in the pavement. It was her duty, of course, to look where she was going and, by the exercise of ordinary care, to avoid danger which was before her; and if, as a reasonably prudent person, she could have avoided it by the exercise of such care, she cannot recover for her injuries. Is the only inference to be drawn from the testimony free from doubt that she had not exercised ordinary care and that her fall had resulted from her own negligence in stepping into the opening which she ought to have seen ? Her testimony is not consistent as to how far the crowd had passed her when she fell; but it must be remembered that she did not attempt to accurately give the distance. From what she said in her examination in chief, it appears that she stepped into the opening almost the instant she got through the crowd that had concealed it from her; and in her cross-examination she gave the distance as six or eight feet, after repeatedly saying she did not know what it was. Be this as it may, if she stepped into the hole just as she. got through the crowd, without having had an opportunity to see it, she was not guilty of contributory negligence. If she had passed beyond the crowd for the distance stated in her cross-examination, she may not, in that short space, have seen the opening, and the only inference to be drawn is not that, as as a reasonably prudent person, exercising ordinary care, she ought to have avoided it. Reasonable minds can fairly differ as to this, and it, therefore, became a question of fact for the jury. It should have been submitted to them under instructions that, if they believed, after she had passed through the crowd, she had an opportunity to see the opening, and by the exercise of ordinary care in looking where she was going, ought to have avoided it, she could not recover; but that if she stepped into it just as she got through the crowd, without having had an opportunity to see it, or if, burdened as she was, she stepped into it after having emerged from the crowd, and, under the circumstances, could not be reasonably expected to have seen it before stepping into it, her negligence was not a bar to her right to recover.

The judgment is reversed and a procedendo awarded.


author: Mr. Justice Potter,

text:
    Hardiman, Appellant, v. Fire Association of Philadelphia.

      Insurance—Fire insurance—Contract—Place of contract—Conflict of laws.

    Where a policy is required to be countersigned by an agent in another state the contract is to be governed by the law of the state where the agent resides.
    Where a property is insured under a policy in the standard form prescribed in the New Jersey statutes, the insured is bound to know the contents of the policy.

      Insurance—Fire insurance—Vacant premises.

    Where a fire insurance policy provides that if the premises be or become vacant or unoccupied and so remain for ten days, the policy shall be void, the vacation of the premises for such a period will render the policy void either under the law of New Jersey, or under the law of Pennsylvania, and the fact that the premises were reoccupied after such time does not avoid the forfeiture.

      Insurance—Fire insurance—Contract—Obscuring words of policy by U. S. stamps.

    In an action on a fire insurance policy it appeared that it contained this provision: “This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void .... if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant, or unoccupied, and so remain for ten days.” In affixing United States revenue stamps to the policy, the company’s agént completely covered the words “this entire policy unless otherwise provided by agreement indorsed hereon or,” so that they could not be seen or read. Held, that the insured could not set up a claim that he had no notice of the existence of the covenant as to the occupancy of the building.
    Argued March 21, 1905.
    Appeal, No. 361, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March Term 1901, No. 3067, on verdict for defendant in ease of Patrick Hardiman v. Fire Association of Philadelphia.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Beitler, J.
    At the trial the defendant claimed that the policy had been forfeited by a violation of a covenant of the insured against leaving the premises unoccupied and vacant for ten days. An inspection of the policy showed that some of the words of this covenant had been covered by United States revenue stamps.
    When plaintiff was on the stand he was asked this question:
    “ Q. What became of the premises in winter?”
    Objected to on the ground that nothing appears on the face of the policy showing that that has any bearing upon the question.
    Mr. Moise states that the part that is covered by the revenue stamps shows that.
    The Court: Unless counsel can agree as to what is under the revenue stamps, the court will direct the revenue stamps to be removed for the purpose of ascertaining what is printed under them.
    Mr. Staake admits that the form produced by Mr. Moise contains what will be found under the stamps, reserving the right to show hereafter that the covering of the words by the stamps was not called to the assured’s intention and was done by the company.
    The court overrules the plaintiff’s objection to the question asked of the witness.
    Exception to plaintiff. [1]
    “ Q. What became of the premises in the winter?—A. My things was in the house all the winter, and I visited the place most every week. I never moved my things out of it.”
    Plaintiff presented these points :
    1. If the jury believe that the revenue stamps were placed upon this policy by the mistake of the defendant’s agent, and that the plaintiff took the policy i'gnorant of that fact and ignorant of the conditions concealed by the stamps, then the defendant cannot rely upon the breach of any of the conditions so concealed as a defense to this suit. Answer; Refused. [2]
    4. If the jury believe that the plaintiff or his son entered and was upon the premises insured at least once in every ten days from the date of the policy to the date of the fire, then the premises did not become vacant or unoccupied within the meaning of the policy. Answer: Refused. [3]
    5. The fact that the premises were occupied at the time of the loss makes it immaterial whether or not they had previously been occupied for ten days together or longer. For the object of the condition is to provide against increase of the risk, and if the fire occurred when the risk was so increased, the policy would be void; but when the loss takes place at a time when the risk is not increased, the object of the condition falls and the condition falls with it. Answer: Refused. [4]
    Defendant presented this point :
    Under all the evidence, your verdict must be for the defendant. Answer: Affirmed. [5]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them.

      Henry B. Patton, with him William H Staahe, for appellant.
    —When a stipulation or an exception to a policy of insurance emanating from the insurers, is capable of two meanings, the one is to be adopted which is most favorable to the insured : May on Ins., secs. 172-179; Allen v. Ins. Co., 85 N. Y. 473; Western Ins. Co. v. Cropper, 32 Pa. 351; White v. Smith, 33 Pa. 186. In case of doubt, as to the meaning of terms emanating from an insurance company, they are to be construed most strongly against the insurer: Wilson v. Ins. Co., 4 R. I. 141; Bartlett v. Ins. Co., 46 Maine, 500; Bowman v. Ins. Co., 27 Mo. 152; Ins. Co. v. Slaughter, 79 U. S. 404; North American Life and Acc. Ins. Co. v. Burroughs, 69 Pa. 43; Humphreys v. Benefit Assn., 139 Pa. 214; Hoffman v. Ins. Co., 32 N. Y. 405; Henn v. Life Ins. Co., 67 N. J. L. 310 (51 Atl. Repr. 689); Hampton v. Ins. Co., 65 N. J. L. 265 (47 Atl. Repr. 433).
    The legal construction of a policy is governed by the law of the state in which the company is incorporated: St. John v. American Mut. Life Ins. Co., 13 N. Y. 31; Cutler v. Thomas, 25 Vt. 73; In re Globe Mut. Ben. Assn. 63 Hun, 263 (17 N. Y. Supp. 852); Fidelity Assn. v. Ficklin, 74 Md. 172 (21 Atl. Repr. 680); Bailey v. Hope Ins. Co., 56 Me. 474.
    The property must be abandoned. If the animus revertendi is shown it will be read into the condition that there could be temporary periods of idleness: Williams v. Ins. Co., 24 Fed. Repr. 625; Mfg. Co. v. Ins. Co., 33 Fed. Repr. 232; Ins. Co. v. Davis, 40 Neb. 700 (59 N. W. Repr. 698); Hill v. Ins. Co., 99 Mich. 466 (58 N. W. Repr. 359); Ins. Co. v. Pankey, 91 Va. 259 (21 S. E. Repr. 487); Keith v. Ins. Co., 92 Mass. 228; Lead Works v. Ins. Co., 2 Fed. Repr. 479; Carr v. Ins. Co., 60 N. H. 513.
    The plaintiff was not bound by this condition, because it did not appearmpon the face of the policy, and the plaintiff never had any notice of its existence: Noel v. Pymatuning Mut. Fire Ins. Co., 130 Pa. 523; Armstrong v. Western Manufacturers’ Mut. Ins. Co., 95 Mich. 137 (54 N. W. Repr. 637); Cooper v. Phibbs, L. R. 2 Eng. & Irish App. 149; Hunt v. Rousmanier’s Administrators, 21 U. S. 174; Snell v. Insurance Co., 98 U. S. 85; Canedy v. Marcy, 79 Mass. 373; Martin v. R. R. Co., 36 N. J. Eq. 109; Kyle v. Fehley, 81 Wis. 67 (51 N. W. Repr. 257); Park v. Blodgett, 64 Conn. 28 (29 Atl. Repr. 133); Griswold v. Hazard, 141 U. S. 260 (11 Sup. Ct. Repr. 972); Lee v. Percival, 85 Iowa, 639 (52 N. W. Repr. 543).
    The admitted fact that the property was occupied at the time of the issuance of the policy and at the • time when the fire took place, makes any intervening breach of the condition immaterial, for the object of the condition is to provide against an increase of the risk, and if the fire had occurred when the risk was so increased the plaintiff could not have recovered, but when the loss takes place at a time when the risk is not so increased the object of the condition falls and the condition falls with it: Traders’ Ins. Co. v. Race, 31 N. E. Repr. 392; Mears v. Ins. Co., 92 Pa. 15; Bentley v. Lumbermen’s Ins. Co., 191 Pa. 276; Kister v. Ins. Co., 128 Pa. 553; DeLoy v. Ins. Co., 171 Pa. 1; Burkhard v. Ins. Co., 102 Pa. 262; Pickett v. Ins. Co., 144 Pa. 79; Heffron v. Ins. Co., 132 Pa. 580; Mut. Fire Ins. Co. v. Coatesville Shoe Factory, 80 Pa. 407; McClure v. Watertown Fire Ins. Co., 90 Pa. 277; Baldwin v. Hartford Fire Ins. Co., 60 N. H., 422; Ins. Co. v. Catlin, 163 Ill. 256 (45 N. E. Repr. 255); Grandin v. Rochester German Ins. Co., 107 Pa. 26; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Commonwealth Ins. Co. v. Berger, 42 Pa. 285; Manufacturers’, etc., Ins. Co. v. O’Maley, 82 Pa. 400; Smith v. Farmers’, etc., Mut. Fire Ins. Co., 89 Pa. 287; Stainer v. Royal Ins. Co., 13 Pa. Superior Ct. 25; Ins. Co. v. Simons, 96 Pa. 520; Life Ass’n v. Gillespie, 110 Pa. 84; Mut. Aid Soc. v. Kinter, 12 W. N. C. 76.

      Albert L. Moise, of Sharp, Alleman Moise, for appellee.
    The lex loci contractus is the place where the contract becomes perfect in contemplation of the parties thereto, and the contract of insurance, upon which this action is brought, did not become complete in contemplation of the parties until the offer had been accepted and the policy signed by the agent of the insurer at Burlington, in the state of New Jersey: Adams v. Lindsell, 1 Barn. & Ald. 681; McClintock v. South Penn Oil Co., 146 Pa. 144; Barney v. Clark, 22 Pitts. L. J. 69; Life Ins. Co. v. Brown, 5 Lanc. Law Rev. 394; Northampton Mut. Live Stock Ins. Co. v. Tuttle, 40 N. J. L. 476; Tayloe v. Merchants’ Fire Ins. Co., 50 U. S. 390; Brooke v. N. Y., Lake Erie, etc., R. R. Co., 108 Pa. 529; Newman v. Brigantine Beach R. R. Co., 3 Pa. Dist. Rep. 833; Pennighaus v. Jacobs, 12 Lanc. L. R. 203; Allshouse v. Ramsay, 6 Whart. 331; Brown v. R. R. Co., 83 Pa. 316; Waverly Nat. Bank v. Hall, 150 Pa. 466; Burnett v. Penn. R. R. Co., 176 Pa. 45.
    The insured is bound by the conditions contained in a policy of insurance which he receives and retains in his possession, without objection, for more than a year and until after the insured property has been destroyed: Swan v. Watertown Fire Ins. Co., 96 Pa. 37; Susquehanna Mut. Fire Ins. Co. v. Swank, 102 Pa. 17; Burson v. Fire Assn. of Phila., 136 Pa. 267; Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. 347; New York Life Ins. Co. v. Fletcher, 117 U. S. 519 (6 Sup. Ct. Repr. 837); American Ins. Co. v. Neiberger, 74 Mo. 167; Richardson v. Maine Ins. Co., 46 Me. 394; Syndicate Ins. Co. v. Bohn, 65 Fed. Repr. 165; Scranton Steel Co. v. Ward’s Line, 40 Fed. Repr. 866; Allen v. Ins. Co., 123 N. Y. 6 (25 N. E. Repr. 309).
    The inadvertent pasting of revenue stamps by the agent of the insurer over a part of some of the conditions contained in the policy, was merely a clerical error, which in no way affected the terms of the contract of insurance entered into between the parties thereto : Farmers’ Mut. Fire Ins. Co. v. Barr, 94 Pa. 345.
    Where one of the conditions of a policy of insurance provides that, “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended .for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days,” the entire policy is avoided if the condition is broken: Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162; Bryan v. Peabody Ins. Co., 8 W. Va. 605; Sonneborn v. Ins. Co., 44 N. J. L. 220.
    Where the relation of insurer and insured is terminated by breach of a condition of the contract of insurance, said contract cannot be restored without the express consent of the insurer ; and this is so without reference to the question whether the breach increased the risk or not: Trask v. State Fire & Marine Ins. Co., 29 Pa. 198; Diehl v. Ins. Co., 58 Pa. 443; Carroll v. Ins. Co., 38 Barb. 402; Ferree v. Oxford Fire & Life Ins. Co., 67 Pa. 373; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460.
    June 22, 1905:
   Opinion by

Mr. Justice Potter,

This was an action brought upon a policy of fire insurance to recover for a loss by fire. The property insured consisted of a dwelling house and farm buildings located in Burlington county, N. J., and owned by the plaintiff.

The policy was of the standard form prescribed by statute in New Jersey and contained among its conditions the following clause: “ This entire policy, unless otherwise provided by agreement endorsed hereon and added hereto, shall be void, if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” In affixing the U. S. revenue stamps to the policy the company’s agent completely covered the words “ This entire policy, unless otherwise provided by agreement endorsed hereon or,” so that they could not be seen or read, but the words “ shall be void if the in ” and the clause as to occupancy were not covered. The policy was in this condition when sent to the broker and by him delivered to the plaintiff and so remained until the trial.

When the policy was issued the plaintiff and his family were occupying the insured premises. In the following October they closed the house and removed to Philadelphia for the winter. In May, 1900, they returned to the farm and continued to occupy the house until September 13, when it was destroyed by fire. During the period of their residence in Philadelphia, from October, 1899 to May, 1900, the greater part of their furniture and household utensils were left in the insured house and the plaintiff visited it at least oncea week and occasionally remained there overnight. The house was in charge of a neighbor who lived a block and a ialf away.

The amount of the loss was fixed by appraisement at 14,478, the amount claimed by plaintiff in his statement. The company defended on the ground that the policy had become void under the condition quoted above by reason of the house having been vacant and unoccupied without permission for more than ten days, and the trial judge upon this ground gave binding instructions for the defendant, and this is assigned as error.

The first proposition upon which appellant rests is, the property did not become “ vacant or unoccupied ” within the meaning of the policy. He admits, however, that if the contract was made in New Jersey, and is governed by the law of New Jersey, this position is untenable: Sonnenborn v. Ins. Co., 44 N. J. L. 220; Lattan v. Ins. Co., 45 N. J. L. 453; Hartshorne v. Ins. Co., 50 N. J. L. 427.

We are clear that under the facts, the contract was made in New Jersey. The broker who procured the insurance for the plaintiff testified that when he presented the application to the vice president of the company in Philadelphia, the latter looked at the form, said it looked all right, no doubt it was all right; but to send it to Mr. Taylor at Burlington. This was certainly not an acceptance of the risk nor an agreement to issue a policy. The letter of the broker to Taylor inclosing the application shows that he did not so understand it, as he requests Taylor to advise him promptly if satisfactory. The policy issued did not become effective until countersigned by the agent at Burlington, and in his letter of August 21, Taylor writes: “ If you have nothing further from us by to-morrow, consider risk placed.”

The authorities are well settled that where a policy is required to be countersigned by an agent in another state, the contract is to be governed by the law of the state where the agent resides. The substance of the cases is thus stated in 22 Am. & Eng. Ency. of Law (2d ed.), 1350, “if the policy provides that it shall not be complete until countersigned by an agent at a specified place, it is a contract of the place where it is to be countersigned.” This suit, it will be remembered, is upon the policy, and not upon any antecedent parol contract.

But even if Pennsylvania law ' were to be applied to this case, no recovery could be had, for the plain condition of the policy was broken, and the contract of insurance became void: McClure v. Ins. Co., 90 Pa. 277; Moore v. Ins. Co., 199 Pa. 49.

The plaintiff further contends that he was not bound by this condition because it did not appeal* upon the face of the policy, and he had no notice of its existence. But the only portion of the policy covered by the adhesive stamps was the beginning of the opening sentences.

If the insured had read his policy, so far as he could see it, he could not have been misled as to its requirements. It was plainly apparent that a part of the printed matter was covered by the stamps and that was sufficient to put the insured upon inquiry. Swan v. Ins. Co., 96 Pa. 37 is a case in point.

It is also urged by the appellee, and we think with force, that the insured was bound to know the contents of the policy because the contract is a New Jersey one, and the policy is the standard form prescribed by the New Jersey statute. The appellant also contends that the admitted fact that the property was occupied at the time of the issuance of the policy and at the time when the fire took place, makes any intervening breach of the condition immaterial.

But this is answered by the appellee by citing Ferree v. Ins. Co., 67 Pa. 373, and .Imperial Fire Ins. Co. v- Dunham, 117 Pa. 460. The condition that the policy should be void if the property became vacant or unoccupied and so remain for ten days was made part of the contract, and the company has a right to rely upon it: Bemis v. Ins. Co., 200 Pa. 340. Under the terms of the policy, .if the insured desired to vacate the property for more than ten days he was bound to give notice to the company. It might then give its consent, or cancel the policy. Failure to notify the company deprived it of its option in this respect, and gave it the right to treat the policy as void from that time.

The specifications of error are overruled and the judgment is affirmed.

      Also reported 14 Atl. Repr. 615. Reporter.


author: Mb. Justice Bbown,

text:
    Lindstrom v. Pennsylvania Company for Insurance on Lives and Granting Annuities, Appellant.

      Negligence—Defective pavement—Landlord and tenant.

    Where premises are in good repair at the time they are let, and the landlord is not bound by the lease to keep them in repair, the tenant in possession and not the landlord, is liable for an injury resulting from failure to repair the pavement in front of the premises.
    A landlord out of possession cannot he held liable for personal injuries sustained by a fall due to a hole in a pavement caused by the removal of a single brick, where there is no evidence that the defect had existed for any length of time, or that the defendant had notice of it or had refused to repair it in disregard of a covenant in the lease.
    Mintzer v. Hogg, 192 Pa. 137, overruled.
    Argued March 27, 1905.
    Appeal, No. 365, Jan. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., March Term, 1904, No. 2621, on verdict for plaintiff in case of Marie Lindstrom v. The Pennsylvania Company for Insurance on Lives and Granting Annuities, trustees for Charles H. Ridgway under will of John J. Ridgway, deceased.
    Before Fell, Brown, Mestbezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.

      The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Frank P. Prichard, with him John Gr. Johnson, for appellant.
    A landlord out of possession is in general not liable in damages for injuries to third persons which result from his premises becoming out of repair: Offerman v. Starr, 2 Pa. 394; Bears v. Ambler, 9 Pa. 193; Eisenbrey v. Penna. Co., 141 Pa. 566.
    Even an owner in possession is not bound to repair or guard against a defect upon the very instant after it is created: Harrison v. Collins, 86 Pa. 153.

      Clinton A. Sowers, for appellee.
    It is the duty of the abutting property owner in Philadelphia to keep the sidewalk in repair and he is liable for an accident occurring by reason of it being out of repair: Mintzer v. Greenough, 192 Pa. 137; Johnson’s App., 75 Pa. 96; Dutton v. Landsdowne Borough, 198 Pa. 563; Duncan v. Philadelphia, 173 Pa. 550; Chester v. First Nat. Bank, 9 Pa. Superior Ct. 517; Brookville Boro. v. Arthurs, 152 Pa. 334; Reading v. Reiner, 167 Pa. 41; Brown v. Weaver, 17 W. N. C. 230.
    The following cases are usually cited to sustain the proposition that the tenant and not the landlord is responsible, namely: Offerman v. Starr, 2 Pa. 394; Bears v. Ambler, 9 Pa. 193; Little Schuylkill Nav. Co. v. Richards, 57 Pa. 142; Wunder v. McLean, 134 Pa. 334; Fow v. Roberts, 108 Pa. 489; Knauss v. Brua, 107 Pa. 85; Eisenbrey v. Penna. Co., 141 Pa. 566; Reading City v. Reiner, 167 Pa. 41; Brown v. White, 202 Pa. 297; Kirchner v. Smith, 207 Pa. 431. An examination of all these cases will show that they are not defective pavement cases or want of repair to sidewalk eases, like the one at bar,, but were cesspool cases, defective privy cases, area way cases or defective building construction or acts of negligence committed by tenant in course of his business or they occurred before the passage of the statutes.

      June 22, 1905:
   Opinion by

Mb. Justice Bbown,

The plaintiff was injured by stepping into a hole in the pavement in front of property owned, but not occupied, by the defendant. At the time of the accident the premises were, in the occupancy of a tenant under a lease from it. There was no evidence that the defect in the sidewalk had existed for any length of time. No one testified to having seen it before the day the plaintiff was injured. The hole was apparently due to the removal of a single brick. The case as presented is not one of a landlord who leases his property with a defect existing in the pavement at the time of the execution of the lease, nor is it one in which, during the term, the pavement becomes out of repair, and, though notified of its condition, the landlord neglects to repair it in disregard of his covenant in the lease to do so. The action is against a landlord, which had neither actual nor constructive notice of the defect in the pavement in front of the premises in the occupancy of its tenant.

A municipality, though having the exclusive control of public streets, is not liable for injury resulting from an obstruction or defect in them, unless it has had actual or constructive notice of the existence of the danger; and this is so, though the duty of the municipality to keep the streets in repair is primary and mandatory: Burns v. Bradford City, 137 Pa. 361; Lohr v. Philipsburg Borough, 156 Pa. 246. An owner of property not occupied by him, but in the exclusive possession of a tenant under a lease from him, ought not to be, and is not, held to stricter accountability. The general rule is, that when prem-' ises are in good repair at the time they are let, and the landlord is not bound by the lease to keep them in repair, the tenant in possession, and not the landlorpl, .is liable for an injury resulting from failure to repair the pavement in front of the premises: Bears v. Ambler, 9 Pa. 193; City of Lowell v. Spaulding, 58 Mass. 277; Gridley v. City of Bloomington, 68 Ill. 47; Wharton on Negligence, sec. 817. A tenant in possession may reasonably be held, from his going in and out of the premises, to have notice of an obstruction in the pavement in front of them as soon as it exists ; but not so with the landlord, who may not even live in the same town or city, or, if living in it, far away from the property occupied by his tenant. From all that appears in the present case, the brick may ha've been removed, so shortly before the accident that even the tenant may not have noticed the hole, and, therefore, was not negligent in not filling it up. The gist of plaintiff’s case is the alleged negligence of the defendant, and she can establish . this, if at all, only by showing that it had not filled up the hole after notice of its existence. No such negligence appears, and unless an owner of property out of possession of it, and while it is' actually occupied by a tenant under a lease from him, is bound to keep constant watch over the pavement in front of it, and the instant the same becomes out of repair to repair it, the plaintiff cannot recover. No such harsh and unreasonable rule can be applied to this landlord, for no such rule exists. In Mintzer v. Greenough, 192 Pa. 137, the following point submitted by the defendant was refused by the court below: “ An owner out of possession, whose house is in the actual occupation of a. tenant, is not required to keep a constant supervision of such house and of the highway in front of it; and if a defect occurs in the sidewalk during such occupation by a tenant, by reason of which a person walking on the streeB is injured, the landlord is not liable to the person injured, unless knowledge or notice of such defect is traced to him.” The refusal of this point was one of the errors assigned, and it is true that the assignment was not sustained by Chief Justice Sterrett, who, in a brief opinion, without discussing the question involved in the point, affirmed the judgment below in favor of the plaintiff. It appeared, however, from the testimony in that case that there were loose bricks in the pavement at the time the tenant went into possession under her lease, and probably the refusal of the point was held to have been proper because it assumed a condition that did not exist. Be this as it may, the point should have been affirmed as a correct announcement of the general principle, and the case, so far as it can be regarded as authority to the contrary, is overruled.

Judgment reversed.