author: Mr. Justice Mestrezat,

text:
    Custer v. Fidelity Mutual Aid Association, Appellant.

      Insurance—IAfe insurance—Application—Evidence—Custom—Act of May 11, 1881, P. L. 20.
    It is the duty of an insurance company to attach a copy of the application and by-laws to a policy of insurance, and, unless it is attached, they are not a part of the contract of insurance, and are not evidence on the part of the insurance company in an action by the beneficiary on the policy; nor in an action by the company to enforce against the insured the payment of assessments levied in pursuance of their provisions.
    An insurance company cannot show that the application and by-laws had been attached to a particular policy at the time it was issued by proving the method and custom of the company in attaching a copy of the applies tion and by-laws when policies were issued.
    Argued Feb. 7, 1905.
    Appeal, No. 352, Jan. T., 1904, by defendant, from judgment of C. P. Del. Co., March T., 1903, No. 174, on verdict for plaintiffs in case of Isaac R. Custer et al., executors of Bethel M. Custer, deceased, v. Fidelity Mutual Aid Association by the name of The Fidelity Mutual Life Insurance Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the plaintiff offered in evidence the policy of insurance without a copy of the application and by-laws attached to it. An official of the company was called on behalf of the defendant, and an offer was made to prove by him the custom of the company in attaching a copy of the application and the by-laws to the policy. This offer was refused.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

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

      J. B. Hannwm, for appellant,
    cited: Mahon v. Pacific Mut. Life Ins. Co., 144 Pa. 409 ; Lewellen v. Mackworth, 2 Atk. 40; Villiers v. Villiers, 2 Atk. 71; Omychund v. Barker, 1 Atk. 21; Cornett v. Williams, 87 U. S. 226.

      O. B. Dickinson, with him J. O. Taylor, for appellee,
    cited: Morris v. Guffey, 188 Pa. 534; Schoneman v. Fegley, 14 Pa. 376.
    March 20, 1905:
   Opinion by

Mr. Justice Mestrezat,

The defendant company issued a policy of life insurance to Bethel M. Custer, for $3,000, payable to Martha H. Custer, his wife, but it was provided that “ in the event of her previous death it shall revert to the insured,' his executors, administrators, guardians or assigns.” Martha H. Custer died prior to the death of Bethel M. Custer, which occurred on Decernber 14, 1902. The insurance company having refused to pay the policy, this suit was brought by the executors of Bethel M. Custer. At the trial, the plaintiffs offered in evidence the policy, and the defendant objected to its admission on the ground that it was not accompanied by the application and the by-laws which the policy provides shall be a part of the contract, and hence the policy was not the whole contract between the parties. The objection was overruled and the policy was admitted. The plaintiffs proved the due delivery to defendant company of the notice and proofs of death of the insured, the payment of the last annual premium called for by the policy, the refusal of the company to pay the loss, and then rested.

The defense set up to defeat a recovery in the action was that a mortality assessment had been made on the policy, as provided in the application and by-laws of the defendant association, which had not been paid by the insured, and for that reason the policy was void. The policy provided that the bylaws of the association and the application of the insured should constitute a part of the contract of insurance. The defendant offered in evidence a copy of the application and also a copy of the by-laws of the association, which offers were excluded on the ground that the papers had not been attached to the policy, as required by the act of assembly, and hence were not a part of the contract of insurance nor admissible in evidence. The defendant then offered to prove that the application and by-laws had been attached to the policy in suit, although now detached, by showing the method and custom of the company in regard to attaching a copy of the application and by-laws to its policies, and that the policy in suit bore evidence of having had the application attached to it. The offer was refused. The defendant next offered to prove that a mortality assessment had been made on the policy in suit in accordance with the terms of the contract, and that the assessment had not been paid, which offer was excluded on the ground that the application and the by-laws which provide for making assessments were not a part of the contract and were not in evidence, and hence there was no authority for making the assessment and no obligation to pay it. The case was then submitted to the jury, and a verdict for the amount of the policy was rendered for the plaintiffs. The defendant company has appealed.

The assignments of error which have been argued here raise the question of the correctness of the rulings of the trial court in excluding the evidence offered for the purpose of showing that a copy of the application and by-laws had been attached to the policy. The learned counsel for the defendant is in error in saying that the trial judge in effect held that no proof could be made that the application and by-laws had been attached to the policy when it was issued. His rulings merely excluded the evidence offered because it did not show that fact nor tend to show it.

The Act of May 11, 1881, P. L. 20, 1 Purd. 1046, provides in section 1, inter alia, that all life and fire insurance policies “ shall contain, or have attached to said policies, correct copies of the application, as signed by the applicant, and the by-laws referred to; and unless so attached and accompanying the policy, no such application, constitution or by-laws shall be received in evidence, in any controversy between the parties to, or interested in the said policy, nor shall such application or by-laws be considered a part of the policy or contract between such parties.” The statute has frequently been before this court for construction. In Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460, the application, detached from the policy, was offered in evidence by the defendant company, and was excluded. Clabk, J., delivering the opinion in the case, said* “The application was rightly excluded from the testimony. ... No copy of the application or of the by-laws of the company was attached to the policy as that act requires; it constituted, therefore, no part of the policy or of the contract between the parties, and was not receivable in evidence. The case is to be considered as if no such paper existed.” New Era Life Association v. Musser, 120 Pa. 384, was an action by the company to recover assessments upon a policy of insurance issued to the defendant. The application of the insured being the basis of the claim, the plaintiff company offered it in evidence. The court, however, held that it was not admissible because it was not attached to the policy, as required by the act of 1881. In affirming the judgment this court said: “ It (act of 1881) is a wise and beneficent act, founded upon sound reasons of public policy; it affords protection to persons who insure their lives or property, and can injure no company conducted upon honest business principles.” In Norristown Title, etc., Co. v. John Hancock Mutual Life Ins. Co., 132 Pa. 385, it was held that an insurance company cannot invoke the act of 1881 to exclude an application offered in evidence by the beneficiary. Speaking of the act, the court says: “ The act of 1881 was evidently intended to impose a duty upon insurance companies, and to protect the insured. . . . The act was passed to compel the company to attach the application to the policy, and upon its failure to do so, it cannot be received -in evidence.” Mahon v. Pacific Mut. Life Ins. Co., 144 Pa. 409, was an action on a policy of life insurance. The policy, which did not have the application attached, was offered in evidence, and the defendant company objected to its admission “ for the reason that it does not contain the whole contract between the parties, but is issued in consideration of the representations made to them in the application therefor and the agreements therein contained, which application was made part of this contract.” The objection to the offer was not sustained. The trial court, on request of defendant company, declined to charge that it was incumbent upon the plaintiffs to show that the application was not attached to the policy or did not accompany the sam„e, the presumption being that the application was attached and did accompany the policy. In affirming the judgment for the plaintiff, this court said, inter alia: “If, as was alleged at bar, the application might have been attached by the company and detached by the plaintiff, that fact was in the knowledge of the company, and could easily have been shown. As it was not attached, there was no presumption that it ever had been.” In Haverstick v. Fire Association, 156 Pa. 333, it was held that, in an action on a policy of fire insurance, where the application and by-laws are not attached to the policy, the insurance company cannot claim that the policy is invalidated because the insured did not comply with the terms and conditions set forth in the constitution and by-laws or pay the assessments.

It is, therefore, settled by our cases that it is the duty of the insurance company to attach a copy of the application and bylaws to the policy, and unless it is attached they are not a part of the contract of insurance, and are not evidence on the part of the insurance company in an action by the beneficiary on the policy; nor in an action by the company to enforce against the insured the payment of assessments levied in pursuance of their provisions. These cases cover the questions raised by all the rulings of the trial judge, except as to the correctness of the exclusion of the evidence offered by the defendant to prove that the company had attached a copy of the application and bylaws to the policy when it was issued. It was incumbent on the defendant company to show this fact, and, like proving any other fact on the trial of the cause, it could only be done by competent and relevant testimony. It offered to show that the papers had been attached to the policy at the time it was issued by proving the method and custom of the company in attaching a copy of the application and by-laws when the policies were issued, and that the policy in suit bore evidence of having had the application attached to it. The person who wrote the policy was dead at the time of the trial, and it was conceded by the company that it had no direct evidence of the fact, or the testimony of any witness who would testify that a copy of the application and by-laws had been attached to the policy. The defendant, therefore, relied solely upon circumstantial evidence to sustain its allegation that it had complied with the statute and had attached a copy of the application and by-laws when it issued the policy.

The learned trial judge was right in excluding both offers. Had they been admitted they would not have proved, nor tended to prove, the fact for which they were offered. Concede that it was the custom of the company, as clearly it was its statutory duty, to attach a copy of the application and by-laws to policies when they were issued, that fact would not prove that it had done so in this particular instance. The policy was in evidence, and it disclosed the obvious fact that at that time a copy of the application and by-laws was not attached to it. There was no presumption nor direct evidence that it ever had been attached. The proof of the custom, therefore, would not have been corroborative of either a presumption or of a positive evidence of the alleged fact, but primary evidence in contradiction of the present condition of the policy. We know of no authority, and have been referred to none, that holds that the proof of a business custom under such circumstances is of itself sufficient to establish a controverted fact. Our own decisions maintain directly the opposite of the proposition: Schoneman v. Fegley, 14 Pa. 376; Meighen v. Bank, 25 Pa. 288 ; Doak v. Curry, 4 Pitts. L. J. 829; Morris v. Guffey, 188 Pa. 534. In the Scboneman ease, it was held that when a witness disclaimed knowledge of the fact whether a receipt had been given by him for a note, the fact could not be proved by evidence of a general practice on his part. In Meighen v. Bank, it was held that evidence of the customs and usages of a bank is not competent of itself to establish a fact in favor of the corporation; but as corroborative or explanatory of facts or proof, may be received and submitted to the jury. In Doak v. Curry, assumpsit for stone sold and delivered, Lewis, J., delivering the opinion of the court, said: “The evidence offered by the defendant below to prove that ‘ it was his general custom to pay cash for all stone that he bought,’ had no tendency to prove that he had paid the plaintiff’s demand. It was properly rejected.”

Following the offer to show the company’s custom of attaching a copy of the application and by-laws to its policies, the defendant’s counsel offered “ to prove by him (witness) or have him say whether or not, from an inspection of this policy, he can tell whether it bears any evidence of that method having been carried out, and the application attached.” The defendant’s counsel then asked the witness, “whether or not, from your knowledge of the customs and methods of the company, and from an inspection of the policy itself, it bears any evidence of having had an application attached to it.” In ruling on this offer and question, the court said: “ There is no objection to the evidence pointing out whatever marks there may be upon the policy for the purpose of calling attention to it, but his opinion about the purpose for which they were made, that I will exclude.” Whether the policy bore evidence of having had another paper attached to it was as readily discernible by inspection by the jury as by the witness, and as it is not pretended that any part of a copy of the application or by-laws was still adhering to the policy, it is apparent that the witness’s opinion would have been only a guess. What an inspection of the policy disclosed as to having had a paper attached to it, is stated by the learned judge, after his examination of the policy, as follows: “ I am unable to see from the face of this paper there has been anything attached, and if there was, I can’t tell what it was.” This statement of the condition of the policy shows conclusively that there were no marks whatever upon the policy which would justify an opinion that “it bears evidence of having had an application attached to it.” Hence, there was nothing on the policy to indicate that a paper of any kind had been attached to it, much less a paper of any particular description, either as to form or matter.

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


source: Caselaw Access Project

author: Mb. Justice Elkin,

license: Public Domain

text:
    Garman’s Estate.

      Executors and administrators—Administrator d. b. n. c. t. a.—Distribution —Legatees.

    In proceedings on the account of the administrator of a deceased executrix where it appears that the indebtedness of the testator has been paid and there are no debtors to or claimants against the estate, distribution may be made directly to the legatees instead of to an administrator de bonis non cum testamento annexo.
    Argued Feb. 13, 1905.
    Appeal, No. 37, Jan. T., 1904, by Cornelius Hauer, Administrator d. b. n. c. t. a. of Isaac Gar-man, deceased, from decree of O. C. Lebanon Co., June T., 1897, No. 2, dismissing exceptions to report of auditor in Estate of Isaac Garman.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Elkin, JJ.
    Affirmed.
    Exceptions to report of Johnson Benson, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

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

      Bassler Boyer, for appellant.
    The fund should have been paid over to the administrator d. b. n. c. t. a.: Carter v. Trueman, 7 Pa. 315; Drenkle v. Sharman, 9 Watts, 485; Slaymaker v. Farmers’ Nat. Bank, 103 Pa. 616 ; Little v. Walton, 23 Pa. 164; Montgomery’s Estate, 7 Phila. 504.

      Robert Adams, with him J. 6r. Adams and J. II. Marx, for appellees.
    March 20, 1905:
   Opinion by

Mb. Justice Elkin,

At the argument counsel for appellant filed a motion to quash the appeal of Moses Gibble, administrator of Amanda Garman, deceased. Order to quash having been made, the record stands with the single appeal of the administrator de bonis non cum testamento annexo.

It is contended that the auditor and the court below erred in not awarding the entire balance shown by the account of Moses Gibble, administrator of Amanda Garman, deceased, who was the surviving executrix of Isaac Garman, deceased, to the appellant. Isaac Garman, the testator, died on April 27,1897, having made a will disposing of his property. Amanda Garman and Aaron Spitler were named as executors. On October 8, 1897, the executors filed an account, after which Aaron Spitler was discharged, thus leaving Amanda Garman, widow, as the surviving executrix. She filed an account on August 19, 1899, showing that all the debts of the testator had been paid, and leaving a balance in her hands as surviving executrix and trustee under the provisions of the testator’s will. On January 24, 1900, the executrix died, and Moses Gibble was appointed administrator of her estate. He then filed the final account of Amanda Garman, surviving executrix of Isaac Garman, deceased. The balance shown by this account is the fund for distribution.

Isaac Garman devised and bequeathed his entire estate to his executors in trust for certain purposes therein specified. It is not necessary to consider the provisions of the will in reference to the trust estate because it is admitted that the trust has terminated, and that the fund is ready for distribution to the parties entitled to receive the same under the will or by operation of law. The only question for consideration is whether the fund now ready for distribution should be awarded to the legatees and distributees, or to the administrator de bonis non. The trust has terminated. The trust fund is ready for distribution. The court has jurisdiction of the subject-matter. The oestuis que trustent and all other parties in interest appear and ask that their respective shares or interests be awarded to them. Tbe auditor makes the awards and the court approves the awards so made. Why is this not a correct procedure ? Counsel for the appellant answers by saying the administrator de bonis non cum testamento annexo, under the provisions of section 31 of the Act of February 24, 1834, P. L. 70, is entitled to the whole fund. If this is the necessary construction of said act then a peculiar result follows, for it means that the fund now ready for distribution in a court of competent jurisdiction, all the debts of the testator having been paid and there being no debtors to or other claimants against said estate, must be awarded, not to the legatees and distributees, but to the administrator de bonis non appointed after these proceedings commenced. If the award is so made, then this appellant must file the same account in the same court, and the same court will be asked to make a distribution among the same parties. Certainly the provisions of said act relative thereto do not require such a meaningless thing to be done. There must be a finality to such proceedings, and in this case all that part of the estate ready for distribution should be considered as settled, and hence the provisions of section 31 of said act do not apply. These provisions of the act were introduced for the purpose of preventing circuity and multiplicity of action in the settlement of the estates of decedents. Prior to the enactment of this act embarrassments arose with creditors, legatees and distributees of deceased persons in relation to the adjustment and payment of their respective claims, from the circumstance of their being compelled to look to various sources and different persons in some instances. It was intended by this act to keep, the administration in one line, and to confer upon the administrator de bonis non the power to receive and demand moneys due the estate, pay the debts and make distribution of balances in his hands for that purpose: Com. v. Strohecker, 9 Watts, 479; Drenkle v. Sharman, 9 Watts, 485; Weld v. McClure, 9 Watts, 495; Carter v. Trueman, 7 Pa. 315. This act is a most proper one, and the wisdom of its provisions has never been questioned. If, however, the position of the appellant is sustained the real purpose of the act is defeated. Instead of preventing circuity of action in this case, it would make circuity more circuitous. The only persons interested in or benefited by such a procedure would be those desirous of getting additional costs and fees by the new administration. We think such a useless procedure was not intended by the act of 1834. Indeed, this view seems to have been in the mind of one of the learned judges who construed the act more than half a century ago. This position was clearly indicated in the case of Carter v. Trueman, 7 Pa. 315, wherein Justice Bell said: “ But it is argued by the plaintiff in error, that section 31, of the act of 1834 was intended to apply only in those cases where debts still remained due from the original estate and therefore requiring the intervention of an administrator to avoid circuity and multiplicity of action, and for their more convenient payment. It may be that where it is conceded no debts remain to be_ satisfied, a distributee may be permitted to recover his share of an ascertained balance by action immediately against the personal representatives of the first administrator.” Even at that time the court must have had in mind a case somewhat similar to the one at bar. In the present case all debts of the testator have long since been paid, there is no duty for the administrator de bonis non to perform, and no responsibility to be incurred, so far as that part of the estate ready for distribution is concerned. Under these circumstances the court below properly awarded a distribution of the estate accounted for to the parties entitled thereto. These being our views of the law it is not necessary to discuss the other questions raised in the argument of the case.

Decree affirmed.


author: Mb. Justice Mestbezat,

text:
    Eckert v. Pennsylvania Railroad Company, Appellant.

      Railroads—Carriers—Carriers of live stock—Negligence.

    Where a railroad company takes horses for transportation beyond its own line, it assumes the duty not only of carrying the horses to the terminus of its road, but also of delivering them at that point to the connecting carrier in a car properly constructed and suitable for the purpose of transporting them to their final destination.
    If the carrier transfers the horses to a car unsuitable for their safe carriage, and they are thereby injured, the carrier is liable for the loss; and the fact that the person employed by the shippers to accompany the stock was present when the horses were transferred to the unfit car and assisted in making the change does not relieve the carrier from liability.

      Railroads—Carriers—Notice of loss—Waiver.

      A carrier may insert in its contract to transport live stock a provision requiring notice of a claim for damages within a stipulated time, but this notice being for the benefit of the carrier may be waived by it. If the carrier has actual knowledge of the loss within five days, and has not raised any question as to the want of notice until the time of trial, a year and one half after the loss, it is for the jury to say whether it has not waived the right to insist upon a formal notice.

      Railroads—Carriers—Form of action—Negligence.

    For negligence by a common carrier in transporting goods intrusted to it, the shipper may at his election bring either an action ex contractu or an action ex delicto.
    A common carrier cannot by contract limit its liability for the negligence of itself or its servants.
    Argued Feb. 27, 1905.
    Appeal, No. 235, Jan. T., 1904, by-defendant, from judgment of C. P. Berks Co., Dec. T., 1902, No. 34, on verdict for plaintiffs in case of Isaac Eckert and A. B. Commings v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Blown, Mestrezat and Elkin, JJ.
    Affirmed.
    Trespass against a carrier for loss of horses. Before EndLICH, J.
    At the trial the court submitted the ease to the jury reserving a question of law.
    The jury returned a verdict in favor of plaintiffs for $5,000.
    On a rule for judgment non obstante veredicto Endlich, J., filed the following opinion :
    1. This is an action of trespass, in which the plaintiffs declare against defendant as a common carrier, alleging that they delivered to it and it received six valuable race horses for transportation from Reading to Readville, Mass., there to be delivered to plaintiffs in good condition, the car selected for the purpose being a Burton car; that in disregard of its duty and negligently, defendant, in the course of transportation, removed the horses from said car into one unsuited for their safe carriage; and that by reason thereof the horses were injured and reached their destination in a damaged condition. The essential part of this averment is the neglect of the defendant to perform its common-law duty of safe carnage, not the failure to carry the horses to their destination in a Burton car. In view of the allegation of negligence, the change of cars was in itself of no moment. It was the unsuitableness of the substituted car for the transportation of horses of the character and value of these, i. e., the failure to observe due care according to the circumstances, with the consequent injury to the horses, that furnished the cause of action laid. 'Neither the relation of the parties to each other, nor the defendant’s duty resulting-therefrom to exercise due care, however, sprang from the terms of the express contract. They arose from the defendant’s receipt of the horses for transportation as a common carrier and its legal obligations as such in respect thereto, which could not be bargained away. It cannot, therefore, be successfully maintained that the action ought to have been in assumpsit upon the express contract. The rule is stated in 1 Chitty, Pldg, p. * 151—that “ although there be an express contract, still if a common-law duty result from the facts, the party may be sued in tort for any neglect or misfeasance in the execution of the contract.” And accordingly it has been settled in this state, at least as far back as Smith v. Seward, 8 Pa. 342, and Porter v. Hildebrand, 14 Pa. 129, that a common carrier is liable for his negligence in carrying goods intrusted to him in an action ex contractu or in an action ex delicto at the election of the party suing.
    2. The contract comtemplating transportation to Readville, Mass., and payment being made for the whole of it, it became a part of defendant’s duty to deliver the horses to the connecting carrier at Jersey City in proper shape for further transportation. It might perhaps have been claimed on behalf of plaintiffs under another form of action that the defendant by its contract had agreed that the whole of the trip should be made by the horses in the Burton car; see R. R. Co. v. Schwarzenberger, 45 Pa. 208, 215, and that in substituting another it took every risk of injury attributable to the change regardless of the question of negligence in the selection, etc., of the substituted car. But that is not the claim made, and its admissibility need not therefore be considered. The plaintiffs’ case is founded on an allegation of negligence by defendant in the performance of a duty strictly within what it assumed by its contract. The defendant had accepted the horses for transportation in the Burton car. As agent for the owners of that car it had received payment for the use of it over, and as carrier payment for, the entire trip to Readville, Mass. It had encouraged the plaintiffs to expend money and to intrust to it and risk their property upon' the faith of an undertaking which it entered into without having informed itself as to its ability to carry it out and which it found itself unable to carry out. When, at Jersey City, the connecting carrier refused to accept the Burton car because of its size, defendant was not absolved from the remainder of its bargain. Safe delivery is included in the undertaking to transport: Graff v. Bloomer, 9 Pa. 114, 115—in this case, safe delivery to the connecting carrier : R. R. Co. v. Schwarzenberger, 45 Pa. 208. Necessarily that means delivery in good condition and in such shape as to be handled by the connecting carrier. Defendant could neither keep the horses at Jersey City for the owner to come and take them away, nor unload them and turn them adrift. It was bound to forward their shipment towards the final destination named in the contract, doing the best it could both in selecting a car reasonably adapted for the purpose, and the best adapted that could be had, and in seeing to it that the car selected was in suitable condition to receive and carry the horses with safety. In so doing it was bound to have regard to all the conditions of which it had notice—the season, the length of the journey accomplished and still ahead, the delay already experienced with its natural effect upon nervous animals, the character and value of the latter, and so on—in a word to use proper care according to the circumstances. A failure of duty in any of these particulars would constitute negligence. And if, either by a negligent selection of the car into which the horses were to be removed, or by an inadequate preparation of it for their reception, defendant exposed the animals to undue risk of injury, it is difficult to see by what method of reasoning it can be exonerated from the consequences attributable to such want of care.
    3. It will not do to say that the horses being attended, under the contract, by plaintiffs’ employees, their submission to a removal into the car designated by defendant was tantamount to an approval of it by the plaintiffs. The references in the contract to such employees very clearly show that their function was well understood on all hands, being simply to look after the wants of the animals and take care of the shippers’ property while being transported according to the contract. There is nothing in the latter which would invest them with any power to vary the contract or release the carrier from any duty devolving upon it under the same. So far as the contract goes, they had nothing whatever to do with the means of transportation or the method or manner in which defendant might choose to carry out its contract in respect thereto. It was their business to stay with the horses, feed them, water them, keep them in order, and do the best they could for them in whatever situation the defendant might place them. It is, of course, true that greater powers might have been given them by the plaintiffs. But of such there is no evidence in the case. It cannot be presumed that the owners of racing stock as valuable as this, who went to the trouble themselves to select and inspect the car in which the animals should travel, and who themselves made the contract with the defendant specifying that car, would delegate to employees such as these the right to annul their action and agree to the substitution of something else regardless of its fitness. The case of Squire v. R. R. Co., 98 Mass. 239, is distinguishable from the present one on a variety of grounds, one of which is that there the making of the contract itself was delegated by the shipper to his employee who attended the shipment, and who thus occupied, upon the face of the transaction, a very different position from that of plaintiffs’ employees in this case.
    4. Whether, in truth, the defendant’s choice of another car was a negligent one under the circumstances, and whether the injuries sustained by the horses were due to its defective condition, the slipperiness of the floor, etc., taken together with its peculiar construction, were under the testimony controverted questions of fact, determinable only by the jury. The defendant was not, of course, responsible for injuries resulting wholly from rough handling by the connecting road. But if the defective condition of the car contributed to the injurious effects of such handling and aided in bringing about the injuries, the defendant was responsible on the familiar principle that where an injury is produced through the negligence of a third party concurring with that of defendant, the latter is nevertheless liable: Cooley, Torts, p. 684; Patterson, Ry. Accid. Law, p. 413; Lockhart v. Lichtenthaler, 46 Pa. 151; Bunting v. Hogsett, 139 Pa. 363.
    5. The requirement in the contract of notice of injury and claim of damages to be given under affidavit to a designated office of the defendant company at Philadelphia within five days from the date of the removal of the stock from the ear, was one which the defendant might waive, its purpose being protection to the carrier: Pavitt v. R. R. Co., 153 Pa. 302, 307, 309. There are indeed, authorities under which what took place in this case on the arrival of the horses at Readville between one of the plaintiffs and the agent of the connecting road might be held to dispense with the notice and claim of damages: Ry. Co. v. Koch, 47 Kans. 753 (28 Pac. Repr. 1013). But it is not necessary to invoke the principle of those decisions, that the agent of the connecting carrier at the place of delivery is, in cases of through consignments, to be treated as the agent of the receiving carrier for the purpose of affecting it with notice of the condition of things-at the time of arrival, etc. It has been so often decided, that a reference to the recent cases of Weiss v. Ins. Co., 148 Pa. 349, and Roe v. Ins. Co., 149 Pa. 94, is more than sufficient, that where an insurer receives without objection notice of loss not complying with the exact requirements of the contract either in form or in point of time, and refuses payment on grounds not involving the technical insufficiency of such notice, he is precluded thereafter from defending on that ground, being deemed to have waived it. Inasmuch as the relation of a common carrier to the shipper is practically that of an insurer, generally at common law, restrictedly under a limited contract, the same rule applies as regards similar requirements of notice, etc., in actions by the shipper against the carrier under such contract for loss or injury of goods shipped: Merrill v. Express Co., 62 N. H. 514; and see R. R. Co. v. Brown (111.), 39 N. E. Repr. 273 ; Hudson v. R. R. Co. (la.), 60 N. W. Repr. 608 ; Rice v. Ry. Co., 63 Mo. 314. The application of this principle to the undisputed facts in this case is too obvious to call for discussion.
    6. The contention that the contract limiting the liability of defendant for injury, through negligence or other causes, to $100 for each horse, the jury ought to have been told that that was the maximum of any possible recovery in the case, is answered by the principle, firmly established in this state, that there can be no valid limitation upon the liability of a common carrier for the results of its negligence : R. R. Co. v. Schwarzenberger, 45 Pa. 208, 215 ; Farnham v. R. R. Co., 55 Pa. 53, 58; R. R. Co. v. Raiordon, 119 Pa. 577; Willock v. R. R. Co., 166 Pa. 184; Ruppel v. Ry. Co., 167 Pa. 166; Allam v. R. R. Co., 183 Pa. 174; Crary v. R. R. Co., 203 Pa. 525, 528. The allegation here was negligence in defendant and injury resulting therefrom. That was the question submitted to the jury. Its verdict must be understood to declare negligence. Hence the limitation in the contract upon the amount recoverable was out of the case. And for this reason, if for no other, it would have been error to instruct the jury, as requested by defendant, that plaintiffs were bound by the terms of the contract.
    What has been said seems to cover all the points raised by the learned counsel for defendant in support of the rules for a new trial and for judgment non obstante veredicto. If the conclusions reached are correct, there is no room for sustaining either.
    The rules to show cause are discharged.

      Error assigned was in entering judgment on the verdict.

      Gyrus Gi. Derr, for appellant.
    The contract of the appellant company being that it would transport the plaintiffs’ horses in Burton Stock Car Company’s car, No. 812 to the place where they were to be received by the connecting carrier, the transportation by the appellant company of the car and horses to the floats of the New York, New Haven and Hartford Railroad Company at Jersey City, where they were received by the latter company and transferred to its railroad at Oak Point, was a complete performance of its contract by the appellant company.
    If the appellant company is to be treated as securing the car under its contract and pursuant to the terms thereof, then Maley, the appellees’ agent in charge of the horses, must be taken to have been invested with the appellees’ right and duty to inspect the car, and he, Maley, having inspected the car and having himself helped to clean it and to put the horses and other paraphernalia of the appellees into it, the car must be regarded as having been fit, or Maley must be regarded as negligent in having allowed the horses in his charge to be put into an unfit car, and this negligence of the agent being imputable to the appellees, there can be no recovery for the resulting injury: Harris v. R. R. Co., 20 N. Y. 232; Squire v. N. Y. Central R. R. Co., 98 Mass. 239.
    The appellees not having delivered to the appellant company’s live stock agent at his office in Philadelphia a claim for the injuries to the horses in question in writing and verified by affidavit in accordance with the terms of the contract, an action for the said injuries cannot be sustained : Pavitt v. Lehigh Valley R. R. Co., 153 Pa. 302.

      Jefferson Snyder of Snyder $ Zieber, for appellees.
    March, 20, 1905:
   Opinion by

Mb. Justice Mestbezat,

It was the duty of the defendant company not only to carry the plaintiffs’ horses to the terminus of its road at Jersey City, but also to deliver them at that point to the connecting carrier in a car properly constructed and suitable for the purpose of transporting them to their final destination. The failure to perform this duty is the basis of this action. The plaintiffs allege, and the jury has found, that the defendant company removed the horses from the Burton car at Jersey City and placed them in a car not arranged and fitted but utterly unsuitable for the safe carriage of the horses. This was a clear violation of the carrier’s common law duty, and the jury having found that this act of the defendant company resulted in the injury to the horses, the company’s liability necessarily followed. The fact that the person employed by the shippers to accompany the stock was present when the horses were transferred to an unfit car and assisted in making the change, did not relieve the company from the duty to furnish a suitable car. This person’s duty, as provided in the contract, required him to load and to unload the stock, to feed, water and care for it while in transit. He had no authority to select or furnish the car to which the stock was to be transferred at Jersey City. That was the duty of the carrier. The shippers had complied with their contract “ to inspect the body of the car or cars in which said stock is to be transported, and to satisfy himself that they are sufficient and safe, and in proper order and condition ” when they selected and had the defendant company procure for them the Burton car in which they loaded the stock at Reading, and which admittedly was a safe and suitable car for carrying their horses. The company received the stock from the shippers in this car to be transported to its destination at Readville, a suburb of the city of Boston, Mass. If subsequently the car en route became unsuitable for the purpose of shipping the horses, or for any other reason it had to be abandoned and the horses had to be transferred to another car, the selection and furnishing of a car suitable for transporting the stock to its destination devolved upon the carrier, and the failure to perform it would convict the company of negligence.

The defendant is not, under the facts of this case, in a position to insist upon the failure of the plaintiffs to deliver to it a verified written claim of their loss within five days from the time the horses were removed from the car at their destination. The horses were shipped from Reading, Pa., on Wednesday, June 11, 1902, and arrived at the freight station of the connecting carrier at Readville, their destination, about seven-thirty o’clock on Saturday evening, June 14. They were in bad condition, and Mr. Cummings, one of the plaintiffs, refused to receive them until he was directed by the railroad agent at that point to remove them from the car and to hand in his bill for damages. Cummings immediately wired Eckert, joint owner of the stock, at Reading, the condition of the horses. On the following Monday, as Mr. Eckert testifies, he communicated with Mr. Fraim, the defendant company’s freight agent at Reading, who had acted for the company in shipping the horses, “ and told him that our horses had met with an accident and we would hold the company responsible.” Fraim replied that “ he would report it to the proper authorities and let me know.” On Wednesday, June 18, Mr. Fraim wrote the defendant’s claim agent at Philadelphia, advising him of the change of cars, of the detention of the stock at Jersey City, of the injured condition of the horses, and that the plaintiffs would doubtless claim damages. Accompanying and attached to this letter was a statement of the billing showing date of shipment, the number of horses shipped, and their destination. This letter was turned over to Mr. Baer, the defendant’s live stock agent at Philadelphia, on June 20. Under this date, Mr. Eckert, who was at Reading, also wrote Mr. Fraim, advising him fully as to the facts of the shipment, the transfer of the stock to an unfit car, its detention and bad treatment at Jersey City, and its condition on arriving at Readville, and inquiring whether the company was willing to take up the question of damages, stating the value of the horses to be about $10,000. Mr. Fraim, in forwarding this letter on the same date to the company’s claim agent at Philadelphia, said: “Please see my letter to you dated June 18, regarding this shipment explaining about the same as Mr. Eckert has done in his letter attached.” On July 14, Mr. Baer wrote Mr. Eckert in reply to his letter to Mr. Fraim that “ I cannot see that any damage would occur ” by reason of the transfer of the horses to another car at Jersey City. It was not until the trial of the cause in November, 1903, nearly one year and a half after the plaintiff’s stock had been injured, that the company gave any intimation that it would resist the plaintiffs’ demand for damages because a verified written claim of loss had not been delivered within five days from the time the horses were removed from the ear at their destination.

It is true, as we have held, that a carrier may insert in its contract to transport live stock, a provision requiring notice of a claim for damages within a stipulated time, and such a provision is reasonable and will be enforced. But, as said in Pavitt v. Lehigh Valley R. R. Co., 153 Pa. 302: “It (the provision for notice of claim) is proper, because the demand promptly made gives warning and enables the carrier, while evidence is attainable and recollection is clear, to institute inquiry into the merits of the claim, and thus guard against fraud and overvaluation.” The purpose of the provision, therefore, and the reason for its enforcement by the court, is to enable the carrier to make a prompt investigation of the merits of the claim and thereby protect itself against imposition by the shipper. Being for the protection of the carrier, the latter may waive its right to enforce the provision. Pavitt v. Lehigh Valley R. R. Co., 153 Pa. 302; Hudson v. Northern Pacific R. R. Co. (Iowa), 54 Am. St. Rep. 550; Hinkle v. Southern Railway Co. (N. C.), 78 Am. St. Rep. 685. Here, as disclosed by the correspondence between the parties, the defendant company’s agents were in possession of all the facts relative to the loss and the cause of it within five days of the delivery of the stock. This fact and the subsequent conduct of the defendant company were sufficient to go to the jury on the question of its waiver of the right to insist upon a formal written claim of the plaintiffs’ loss; and hence, the court could not', as requested by the defendant, direct a verdict for the company on the ground that there had been no delivery of such a claim.

It is settled, as the authorities cited by the trial judge show, that for negligence by a common carrier in transporting goods intrusted to it, the shipper may, at his election, bring either an action ex contractu or an action ex delicto. It is also unquestionably the law of this state, as declared in numerous decisions of this court, that a common carrier cannot by contract limit its liability for the negligence of itself or its servants.

The able and exhaustive opinion of the learned trial judge, overruling the defendant’s motion for judgment non obstante veredicto and for a new trial, in which he considers all the questions raised on this appeal, renders any further consideration of the assignments of error unnecessary.

The judgment is affirmed.


text:
    Bartholomew, Appellant, v. Kemmerer.

      Negligence—•Master and servant—Laundry—Mangle—Absence of guard rail—Province of court and jury.

    In an action by a woman against the proprietor of a laundry to recover damages for injuries to her hand received while working at a mangle, it appeared that while the plaintiff was absent from her work for about two weeks the defendant had substituted for the mangle at which plaintiff worked another and different kind of mangle. She was set to work at the new mangle without any instructions, and was immediately injured. Plaintiff testified that the mangle was fitted with no guard in front to protect the operator. In this she was to some extent corroborated by a witness for defendant. Three witnesses for the defendant testified that the machine was fitted with a guard while plaintiff was operating it. Held, that the defendant’s negligence and plaintiff’s contributory negligence were for the jury, and that a verdict and judgment for plaintiff- should be sustained.
    A servant has the right to expect his employer to provide machinery, tools and appliances that are reasonably safe for his use, and he assumes no risk growing out of their defective character, unless he has been fully advised that they are defective and dangerous.

      Negligence—Controverted questions of fact—Evidence—Province of court and jury.

    All controverted questions of fact, supported by testimony, are for the jury to ascertain and determine from the evidence. The duty of the court and jury respectively does not depend upon the number of witnesses testifying on either side. There may be but one witness called to support the plaintiff’s case, while on the other hand, the defendant may support his contention by a great many witnesses, yet the court would unquestionably invade the province of the jury, if, for this reason, it entered a nonsuit against the plaintiff.
    Argued March 6, 1905.
    Appeal, No. 149, Jan. T. 1904, by plaintiff, from judgment of C. P. Northampton Co., April T., 1902, No. 61, on verdict for defendant in case of Laura Bartholomew v. Oscar E. Kemmerer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Schuyler, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for defendant.

      Frror assigned was in giving binding instructions for defendant.

      Calvin F. Smith, for appellant.
    A proper appliance was not furnished to plaintiff : Titus v. R. R. Co., 136 Pa. 618 ; Cunningham v. Bridge Works, 197 Pa. 625.
    Before putting an inexperienced employee in charge of dangerous machinery, with the use of which he is unacquainted, it is the positive duty of the employer to instruct and properly qualify him for such new service : Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Lebbering v. Struthers, 157 Pa. 312; Finnerty v. Burnham, 205 Pa. 305.

      The case at bar is on all fours with the case of Doyle v. Pittsburg Waste Co., 204 Pa. 618.
    By changing a machine so as to make it more dangerous, an employer assumes the duty of giving notice of the additional hazard: Ryan v. Chelsea Paper Mfg. Co., 69 Conn. 454 (37 Atl. Repr. 1062).

      A. Goldsmith, with him W. O. Shipman, for appellee.
    We contend from the testimony that no negligence whatever has been shown in this case on the part of the defendant. The fact that the plaintiff was injured by the mangle while in the employ of the defendant does not convict him of negligence. An employer is not an insurer: Titus v. R. R. Co., 136 Pa. 618; Service v. Shoneman, 196 Pa. 63 ; Keenan v. Waters, 181 Pa. 247; Higgins v. Fanning, 195 Pa. 599; Lehman v. Carbon Steel Co., 204 Pa. 612.
    A servant or employee assumes all the risks of all dangers of his employment, however they may arise, against which he may protect himself by the use of ordinary observation and care: Fricker v. Penn. Bridge Co., 197 Pa. 442 ; Diehl v. Lehigh Iron Co., 140 Pa. 487 ; Augerstein v. Jones, 139 Pa. 183; Hart v. Allegheny County Light Co., 201 Pa. 234; Kaufhold v. Arnold, 163 Pa. 269; Nuss v. Rafsnyder, 178 Pa. 397; Becmisch v. Roberts, 143 Pa. 1; Masterson v. Eldridge, 208 Pa. 242.
    March 20, 1905 :
   Opinion by

Mb. Justice Mestbezat,

The defendant’s negligence and the plaintiff’s contributory negligence were for the jury and not for the court to determine. The plaintiff is an illiterate German woman, whose knowledge of the English language was so deficient that the learned trial judge evidently failed to comprehend the import of her testimony. She entered the service of the defendant in 1902, and was then employed in his box factory. Subsequently, she was transferred to his laundry and was engaged in ironing by hand. She was next put to work by her employer at a mangle, which was her first experience at this kind of labor. In operating this machine, the plaintiff was protected by a top over the rolls which prevented the fingers or hand of the operator from being drawn into the machine and coming in contact with, the rolls. On one occasion, the plaintiff was compelled to be absent from her employment for two weeks or more by reason of the illness of her daughter. On her return to the laundry the defendant informed her she could have her old job again at the rolls. She immediately went to the place in the laundry where she had previously been employed to resume her work on the mangle. She found there a different machine which the defendant had substituted in place of the former mangle during her absence. It was a Wilson mangle and different in construction from the one on which she had previously worked. It had no top over the rolls for the protection of the operator. The first time the plaintiff made an attempt to operate the machine her hand was drawn into it and badly injured. This action was brought to recover damages for this injury, which the plaintiff alleges was caused by the negligence of the defendant. It is claimed by the plaintiff that the defendant was negligent in furnishing a defective and unsafe mangle and in not instructing her how to operate the machine.

It is conceded that the Wilson mangle is a modern, up-to-date machine and is so regarded by the trade. But it is claimed by the plaintiff that when she was put to work on it, the wooden guard which is in front and a part of a complete machine and is used for the protection of the operator had been removed and that, thereb}r, the machine became dangerous to the person feeding it. The plaintiff alleges she knew nothing about the machine or its construction, and did not know that a perfect Wilson machine had a guard in the front to protect the operator. She thought, as she alleges, it was so constructed that it could be operated with safety and was ignorant of any danger in feeding the machine in the absence of a guard rail. It is admitted that she received no instructions as to the manner of operating the mangle.

The learned counsel for the appellee, in their printed argument, say: “The question (for consideration here) is solely one of fact and reduces itself down to whether there was a guard upon the mangle through which the plaintiff was injured.” It is further said in the appellee’s printed argument that “this assertion (that there was no guard upon the machine) is directly and flatly contradicted by the evidence of all the witnesses as aforesaid with the exception of the plaintiff herself, who lamely admits that she does not even know what a guard is.” And for this reason the appellee maintains that the court tvas right in withdrawing the question from the jury. This view fails to discriminate between the province of the court and that of the jury in the trial of causes. All controverted questions of fact, supported by testimony, are for the jury to ascertain and determine from the evidence. And the duty of the court and jury respectively does not depend upon the number of witnesses testifying on either side. There may be but one witness called to support the plaintiff’s case, while on the other hand, the defendant may support his contention by a great many witnesses, yet the court would unquestionably invade the province of the jury, if, for this reason, it entered a nonsuit against the plaintiff.

We think the plaintiff’s testimony as to there being a guard on the mangle when she was injured was sufficient to go to the jury on that question, and that she was partly corroborated by at least another witness. She testified positively and distinctly that there was no guard on the machine when she commenced to operate it, that the machine was open and that she could see the bare rollers. In reply to the questions of counsel she reiterated her testimony as to this fact. The appellee, however, says her testimony is “ absolutely unintelligible ” because his counsel having asked her what a guard is, she replied, “ I don’t know.” Her defective knowledge of the language and lack of familiarity with the machine fully account for her answer. Almost in immediate connection with their former question, the counsel asked her again: “ And you don’t know what a guard is, do you?” To which she answered: “No, it wasn’t on.” To another question of similar import, she replied that “it was all bare when I was there.” It is very probable that she did not know the name of the piece of wood used to protect the hands of the person operating the machine and which is called a guard. This, however, does not discredit her testimony, but, on the other hand, tends to show her ignorance of the machine at which she was put to work and the consequent necessity for instructions. Her testimony discloses her illiteracy and the fact that very frequently she did not comprehend the counsels’ questions.

The plaintiff was to some extent corroborated by the testimony of Mr. Driesbach, the expert. He testified that “ if that guard was in place, that girl could n’t see in and see those bare rolls. . . . When a person sees a bare roll I would take it for granted that the machine was unguarded.” If she tells the truth as to seeing the bare rolls of the machine, Driesbach corroborates her as to the absence of a guard from the mangle at the time she met with the accident. It is quite true that he testified that the Wilson mangle was manufactured and sold with a railed guard. But he did not see this machine on the day of the accident, and of course could not testify that there was a railed guard on it at that time.

The appellee called three witnesses who testified that the guard was on the machine at the time the plaintiff was injured. The number of witnesses to that point was clearly with the appellee. But that fact did not withdraw the question from the jury. The credibility of the witnesses, including the plaintiff, was solely for the jury and should have been submitted to them.

The learned trial judge directed a verdict for the defendant because the plaintiff’s “ case falls clearly within the inflexible rule that an employee assumes all open and obvious risks which he had had an opportunity to ascertain that are incident to the discharge of his duties.” The legal proposition announced by the court is correct, but he was in error in holding that it withdrew this case from the jury. Mr. Driesbach, the expert, testified: “ Q. State what is the ordinary kind of mangle used and generally used by the trade, a guarded or an unguarded mangle ? A. A guarded mangle, sure. . . . Q. In all laundries that you have been in, and that you know anything about, state whether or not they generally use the guarded mangle. A. Yes, sir, always, to the best of my knowledge. . . . Q. Assuming that the mangle we are talking about was a Wilson mangle, was then a guard proper at that or not proper? A. Yes, sir.....Q. And if a Wilson machine did not have a guard on, then it was not properly equipped? A. No, sir. . . . Q. Is a guarded machine more or less dangerous than an unguarded? A. Sure, a guarded machine is less dangerous than an unguarded.” It was the contention of the plaintiff, which it will be observed is supported by this testimony, that the mangle, with which she had had no former experience, was defective, and not a safe machine by reason of the absence of the guard. It was further claimed by her that she had received no instructions how to operate this machine, with or without a guard. The jury would have been justified in sustaining her contention as to these matters under the evidence submitted to them. The plaintiff by virtue of her employment did not assume the risk of defective machinery, as we have time and again decided. “ The general rule that a workman assumes the risks incident to his employment when he enters upon it,” says Mr. Justice Williams in Rummel v. Dilworth, 131 Pa. 509, “ is well settled, but its application is subject to certain qualifications. He certainly has the right to expect his employer to provide machinery, tools and appliances that are reasonably safe.for his use, and he assumes no risks growing out of their defective character unless he has been fully advised that they are defective and dangerous.” Cargill v Philadelphia Towel Supply and Laundry Co., 185 Pa. 269, was an action for injuries received by a girl while engaged in feeding a mangle. In its facts and the questions for determination, it resembles very much the case in hand. There, it was claimed by the defendant company that the plaintiff was employed only to shake out the towels and not to help generally in the laundry, which included operating the mangle. Soon after her employment she commenced to work at the mangle by which she was injured. The evidence was conflicting as to whether she was instructed regarding the work, and as to the necessity for instructions. The mangle had no guard on it and the evidence was conflicting as to whether a guard increased or decreased the danger. The plaintiff’s hand was caught in the mangle while she was feeding towels to it, but she was unable to say how it had happened. The plaintiff alleged that the defendant was negligent in taking her from the employment for which she was hired, and putting her to a more dangerous employment, without having given her proper instructions as to the danger of the new employment, or as to the manner in which she should work upon the machine ; and that the mangle was negligently maintained by defendant in that the protection or guard, which should have been in place to prevent plaintiff’s hand from being drawn into the mangle, had been suffered to be away from its proper place. These, it will be observed, are the negligent acts complained of in this action. At the conclusion of the testimony in the case cited, the court was requested, as here, to direct a verdict for the defendant, but the request was refused and the case was submitted to the jury which returned a verdict for the plaintiff. This court affirmed the judgment entered on the verdict, thereby holding that the case is for the jury where the evidence is conflicting as to whether the plaintiff was properly instructed before being placed at work at the mangle, whether the absence of a guard rendered the machine more dangerous, and whether the plaintiff herself was guilty of contributor}' negligence. These were the questions raised in the case at bar, and the learned judge was in error in directing a verdict in favor of the defendant oh the ground that the plaintiff assumed the risk of her employment.

The assignments of error are sustained and the judgment is reversed with a venire facias de novo.


author: Mb. Justice Fell,

text:
    Howell, Appellant, v. Northampton Railroad Company.

      Equity—Specific performance—Incumbrance—Public road—Notice—Railroad.

    A decree for specific performance will not be made unless the legal obligation is clear and no injustice will result from its enforcement.
    An incumbrance is a burden on land which depreciates its value, as a lien, easement or servitude, and includes any right to or interest in the land which may subsist in third persons to the diminution of the value of the land, but consistent with the conveyance of the title.
    A contract to purchase a strip of land, free of incumbrances, for railroad purposes, will not be specifically enforced in equity, where the evidence shows that running lengthwise within the strip was a public road which had been practically abandoned by the public years before, that the public used another road laid out by the county near by, that the old road had the appearance of a private lane, and that its existence as a public road was not known to the officers of the company when the contract was made.
    Argued March 7, 1905.
    Appeal, No. 295, Jan. T.,'1904, by plaintiff, from decree of C. P. Northampton Co., Dec. T. 1903, No. 10, dismissing bill in equity in case of David W. Howell v. Northampton Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for specific performance. Before Scott, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Aaron Goldsmith, with him O. H. Meyers, for appellant.
    A public road upon land, which the owner had covenanted to sell and convey clear of incumbrances, is not an incumbrance and the vendee cannot set up the same as a defense in an action for the purchase money: Patterson v. Arthurs, 9 Watts, 152; Peck v. Jones, 70 Pa. 83 ; Memmert v. McKeen, 112 Pa. 315 ; Friend v. Oil Well Supply Co., 179 Pa. 290; Eby v. Elder, 122 Pa. 342.
    Even the courts will take judicial notice of the existence of public roads; much more ought a contemplating purchaser. The following cases are cited upon the question of notice of the existence of a public road: Ake v. Mason, 101 Pa. 17; Bailey v. Miltenberger, 31 Pa. 37; Hottenstein v. Lerch, 104 Pa. 454 ; Hicks v. American Nat. Gas Co., 207 Pa. 570 ; Wertheimer v. Thomas, 168 Pa. 168; Leonard’s App., 94 Pa. 168; Schnyder v. Orr, 149 Pa. 320; Tabor Street, 26 Pa. Superior Ct. 167.

      Edward J. Eox, with him James W Eox, for appellee.
    Plaintiff has an adequate remedy at law: Dalzell v. Crawford, 1 Parsons, 37; Weaver v. Shenk, 154 Pa. 206.
    At the very outset the plaintiff is confronted with the fact that he failed to disclose to the officer of the defendant company that this was a public road and not, as it appeared to be, an almost abandoned private lane. This in itself would be almost sufficient to defeat his application to a court of equity for a decree for specific performance : Finley v. Aiken, 1 Grant, 83 ; Goodwin Gas Stove and Meter Co.’s App., 117 Pa. 514; R. R. Co. v. Cooper, 33 Pa. 278 ; Rigg v. Ry. Co., 191 Pa. 298; Evans v. Taylor, 177 Pa. 286; Stayton v. Riddle, 114 Pa. 464; Pomeroy’s Equity, §1402; Waterman Spec. Perf. §19.

      The road was an incumbrance : Herman v. Somers, 158 Pa. 424 ; Batley v. Foerderer, 162 Pa. 460 ; Clouse’s App., 192 Pa. 108 ; Dalzell v. Crawford, 1 Parson’s Eq. Cases, 37; Nicol v. Carr, 35 Pa. 381; Swayne v. Lyon, 67 Pa. 439 ; Wilson v. Cochran, 46 Pa. 229; Withers v. Baird, 7 Watts, 227; Gans v. Renshaw, 2 Pa. 34.
    March 20, 1905:
   Opinion by

Mb. Justice Fell,

The bill in this case was properly dismissed. A decree for specific performance will not be made unless the legal obligation is clear and no injustice will result from its enforcement. It could not have been made in favor of the plaintiff without disregarding the express terms of the contract and the manifest equity of the defendant.

The plaintiff agreed to sell and the defendant to buy a tract of land 2,500 feet in length and about fifty feet in width for railroad purposes. The consideration was $1.00 and an annual rent of $250, to be extinguished on the payment of $5,000; or the vendor at his option, to be exercised within' thirty days, was to receive in payment bonds of the railroad company of the-par value of $5,000 and to convey in fee simple clear of encumbrances. To avoid delay in the building of the road the defendant was allowed to enter on the land at once, having delivered its check of $1,000 to the plaintiff to secure its compliance with the contract. The plaintiff elected to accept bonds in payment and tendered his deed, six months after the date of the agreement and after the road had been built. The defendant refused to accept the deed for the reason that a part of the land was occupied by a public road running lengthwise of the tract, of the existence of which its officers had no knowledge when the agreement was entered into nor until the road was built. This public road had been laid out seventy years before over the plaintiff’s land, but had been but little used for six years because the county had constructed a much better road parallel to and within a short distance of it. It had the appearance of a private lane extending from the plaintiff’s buildings to a sand bank. The learned judge found that there was nothing on the ground to indicate the existence of a public road and that the defendant’s officers who examined the land and made the agreement had no knowledge of it. While practically abandoned, it was still a public road, which could not be occupied by the defendant without imposing upon it the duty to construct another road to take its place.

The defendant contracted for an absolute estate unfettered by any restriction upon its use and enjoyment. The land was to be “ free of encumbrance.” An encumbrance is a burden on land which depreciates its value' as a lien, easement or servitude, and includes “ any right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the conveyance of the title: ” Batley v. Foerderer, 162 Pa. 460. A public road laid out over land is an encumbrance that affects its physical condition. Where the servitude is visible the purchaser is presumed to have knowledge of it and to have bought with this knowledge : Patterson v. Arthurs, 9 Watts, 152; Memmert v. McKeen, 112 Pa. 315. But in this case the presumption of knowledge of the existence of the road was effectually rebutted. A new road in plain view had been constructed to take the place of the old one, and the public travel had been diverted to it leaving on the ground no physical evidence of the public easement.

The findings of fact furnish no ground for the contention that the defendant took possession of the land and built a railroad on it after knowledge of the existence of the public road. There was no knowledge until four months after possession was taken, and without knowledge there could be no waiver of defects.

The decree is affirmed at the cost of the appellant.


author: Per Curiam,

text:
    Cheat Valley Railroad Company v. Humes, Appellant.

      Corporations—Treasurer—Distribution of money—Dividends.

    The treasurer of a corporation is personally liable to the corporation for moneys of the company which he has distributed to himself and other stockholders without any authority from the board of directors, and without any dividend having been declared.

      Argued March 13, 1905.
    Appeal, No. 320, Jan. T., 1904, by defendant, from judgment of C. P. Lycoming Co.,. Dec. T., 1903, No. 287, on verdict for plaintiff in case of Che^; Valley Railroad Company v. Hamilton B. Humes, administrator of Samuel Humes, deceased.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit against the treasurer of a corporation to recover moneys alleged to have been wrongfully distributed by him. Before Hart, P. J.
    At the trial it appeared that the defendant was treasurer of the plaintiff, the Cheat Valley Railroad Company. On June 1, 1903, the defendant received as treasurer $2,000 which were rentals due the plaintiff from the Buck Horn-Portland Cement Company. Immediately thereafter he distributed the said sum to himself and two other stockholders, who practically owned all of the stock of the plaintiff. He made this distribution without any authority from the directors, and without any dividend having been declared. On June 5, 1903, all of the stock of the plaintiff company was sold and assigned by its then stockholders to another party. On the same day the defendant resigned his position as "treasurer. New officers and new directors were elected, and this suit was subsequently brought against the defendant.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      John J. Reardon for appellant.

      O. La Rue Munson, with him Addison Oandor, for appellee.
    March 20, 1905:
   Per Curiam,

The reasons in his charge amply sustain the learned judge of the court below in his peremptory instruction to find a verdict for plaintiff. The money in the hands of the corporation treasurer belonged to the corporation, this plaintiff; except under the charter and by-laws of the corporation it could not lawfully be drawn therefrom. The method by which defendant and his colleagues obtained it is wholly unlawful.

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


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    Huber v. Hamilton, Appellant.

      Will—Devise—Fee simple estate—Power to sell—Restriction—Gift to widow.

    The words in a will which seem to import a restriction on the power of alienation cannot affect the primary devise of a fee. A power of alienation is an inseparable incident of a -fee.
    Testator directed as follows: “I give and devise to my beloved wife all the real and personal estate owned by me at my decease; she to dispose of any and all my real and personal estate she wishes to for her own use, so long as she remains my widow; on her decease or marriage, all of what is left to revert back to my legal heirs.” Held, that the widow took an estate in fee simple.
    Argued March 13, 1905.
    Appeal, No. 377, Jan. T., 1904, by defendant, from judgment of C. P. Lycoming Co., June T., 1904, No. 381, on case of Maggie Huber, Executrix of Milton Huber, deceased, v. T. B. Hamilton.
    Before Dean, Fell, Mestjrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover balance of purchase money.
    The case turned on the marketable title to real estate and was tried by the court without a jury.
    From the record it appeared that the land involved in the sale by plaintiff to defendant, passed to plaintiff under the will of Milton Huber, deceased, which contained, inter alia, the following clause:
    “ 3. After the pajunent of my said debts and funeral expenses, and the $200 bequeathed to the Wildwood Cemetery Company, I give and'devise to my beloved wife, Maggie Huber, all the real and personal estate owned by me at my decease, she to dispose of any or all of the real or personal estate she wishes to for her own use, so long as she remains my widow, on her decease or marriage all of what is left to revert back to my legal heirs.”

      The court held that under the above clause plaintiff took an estate in fee simple, and that she was entitled to judgment in in the sum of $2,200. Defendant appealed.

      Error assigned among others was in entering judgment for plaintiff.

      Otto Gr. Kaupp, for appellant.

      Robert E. Allen and John (?. Beading, for appellee, were not heard.
    March, 20, 1905:
   Per Curiam,

This will gives to the wife an estate in fee simple under all the cases. The words which seem to import a restriction on her power to alienate it cannot affect the primary devise of the fee. A power of alienation is an inseparable incident of a fee: 4 Kent, 131; McWilliams v. Nisly, 2 S. & R. 507.

The learned judge .of the court below reached the same result by holding, on the authority of Henninger v. Henninger, 202 Pa. 207, that the measure of her enjoyment of the estate, was, under the devise, as full as if testator had attempted no restriction. It matters not on which theory the result is reached, the judgment is right, and is, therefore, affirmed.


author: Pee Cueiam,

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    Lane, Appellant, v. Sayre Land Company.

      Execution—Unlawful process—Unlawful seizure—Variance between statement and proofs—Nonsuit.

    In an action of trespass where the statement of claim avers merely a seizure on an unlawful process while the proofs show that the process was lawful, the plaintiff cannot recover for a malicious excessive seizure of goods, although the evidence shows a malicious excessive seizure.
    Argued March 14, 1905.
    Appeal, No. 51, Jan. T., 1905, by plaintiff, from order of C. P. Bradford Co., Dec. T., 1902, No. 435, refusing to take off nonsuit in case of Ella M. Lane v. Sayre Land Company.
    Before Dean, Fell, Mestrezat, Potter and Elkin, J J.
    Affirmed.

      Trespass for an alleged wrongful seizure of goods by an unlawful process. Before Fanning, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the action of the court.

      William Maxwell, with him O. J. O’Brien, for appellant.

      Rodney A. Mercur, with him I. N. Evans and. L. T. Hoyt, for appellee.
    March 20, 1905 :
   Pee Cueiam,

It would have been much more satisfactory to us in reviewing this case, if the learned trial judge in the court below had placed upon record his reasons, no matter how briefly, for directing the compulsory nonsuit of which appellant complains. We gather from appellant’s argument at bar, that his claim for damages is based on an excessive seizure in value of plaintiff’s goods to satisfy an attachment execution issued on a judgment on the docket of a justice of the peace. The judgment was for only $38.48 and the personal property seized by the officer was valued at nearly $4,000. It seems the property was easily separable into small lots or parcels and that the sale of, at most, two or three of them would have satisfied the attachment. But the plaintiff’s declaration or statement of claims avers no malicious excessive seizure of goods which of itself is a good cause of action ; it does aver a malicious seizure of goods by unlawful process, but an examination of the record shows that the process was regular and lawful; therefore, the action of the officer was not a trespass. The evidence might have warranted an action for the abuse of civil process and the plaintiff might have offered in evidence the great disparity between the amount of the judgment, and the value of the goods as affording an inference of malice; but there is no such averment in the statement; it is simply an averment of seizure on an unlawful process ; that is not correct; the process was lawful; at most the excessive seizure only was unlawful. The nonsuit on the issue framed was properly entered. The assignments of error are overruled and the judgment is affirmed.


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    McMahon’s Estate.

      Partition—Denial of tenants in common—Confirmation of proceedings.

    The denial of the tenancy in.common by an heir of the decedent on the return of the writ of partition, with an assertion of title in himself by adverse possession, will not be sufficient to require a suspension of the proceedings, but the court may hear evidence upon the claim asserted and if it be insufficient to justify submission to a jury, may confirm the inquest and proceed with the partition.
    Where in proceedings in the orphans’ court to partition the real estate of a father, one of the daughters claims a portion of the land through the will of her mother, who died after the father, but it appears that the mother, under the father’s will, had only a life interest in the land which she had devised to her daughter, and that as to other land which she may have held in fee, she died intestate, the court may determine that the claim set up by the daughter was insufficient, and proceed with the partition.
    Argued March 13, 1905.
    Appeal, No. 198, Jan. T., 1904, by Susan McMahon, from decree of O. G. Clinton Co., in partition proceedings in Estate of Patrick McMahon.
    Before Dean, Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition for partition.
    Mayer, P. J., filed the following opinion :
    Bridget Swartzfisher, the daughter of Patrick McMahon, who died in 1884, filed her petition for partition of three properties, to wit:
    No. 1. Lot 4 in block 6, on south side of Erie avenue, having a two-storied frame building for business purposes, and a two-storied frame dwelling house and outbuildings thereon.
    No. 2. Two adjoining lots on south side of Erie avenue, Nos. 9 and 10 in block 12. These had a two-storied frame dwelling house and other buildings thereon.
    No. 3. Lot No. 6 in block No. 3, having a hotel erected thereon and known as the hotel property.
    Upon this petition on August 2, 1902, an order was made by the court as follows:
    “ Now, August 2, 1902, upon the presentation of the above stated and foregoing petition and due consideration thereof, the court awards an inquest as prayed for; returnable at next term, September 22, 1902.

      “Notice of this proceeding and of the time and place of the meeting of said inquest to be given twenty days previously thereto, personally, or by writing left at their respective places of abode, to all parties in interest residing within Clinton county, and to all persons resident without said Clinton county notices shall be given personally, or by writing left at their respective places of abode as aforesaid, if such notice be found reasonably practicable, and if not found reasonably practicable, such notice shall be given to all persons interested and residing without the county of Clinton by publication for three weeks ' in the Clinton Democrat, a newspaper published weekly in Lock Haven, Clinton county, Pennsylvania, and mailing copies of said publication to such nonresident parties addressed to their last known places of abode, if any such abodes be known.”
    Susan McMahon, a daughter of Patrick and Mary McMahon, excepts to the confirmation of the return of. the sheriff to the writ of partition in the above stated case and moves the court to quash the said writ for the following reasons:
    “ 1. The petitioner has included in her said petition, and in the writ of partition, the following lots of land, situate in the borough of Renovo, county of Clinton, Pennsylvania, viz :
    “ (a) Lot No. 4 in block 6, in the general plan of the said borough of Renovo, particularly designated and described in the said petition and writ, as piece No. 1, in which, at the date of the death of Patrick McMahon, he held an estate in fee simple, and the absolute property.
    “ (b) Lots Nos. 9 and 10 in block 12, in the general plan of the said borough of RenoAro, particularly designated and described in the said petition and writ as piece No. 2, in which Michael J. McMahon, at the time of his death, was seized of an estate in fee simple or absolute property.
    “ (e) Lot No. 6 in block 3, in the general plan of the said borough of Renovo, particularly designated and described in the said petition and writ, as piece No. 3, in which Mary McMahon, at the date of her death, was seized of an estate in fee simple or absolute property.”
    “ The act of assembly under which proceedings in partition are instituted in the orphans’ court of Clinton county, contemplates the division in one proceeding of a single estate, and the court is not empowered to join more than one.”

      On. November 14, 1902, additional exceptions were filed by tbe said Susan McMahon as follows :
    “ There being no personal property of Patrick McMahon, deceased, out of which the legacies contained in his will shall be paid, and it appearing from the language of his will that it was his order to realize the money to pay the same, the terms of the will worked a conversion of the property, and partition will not lie.
    “ The legacy in the will of said Patrick McMahon, deceased, as appears by the will, amounting to over one thousand ($1,000.00) dollars on lot or piece No. 1, and the mortgage on lot or piece No. 2, as described in the petition, being one thousand ($1,000.00) dollars, the cheapest and most convenient and the proper legal method to dispose of the same is by proceedings in the orphans’ court to make sale of the property, and not by proceedings in partition.
    “ Petitioner does not aver distinctly that there are no parties interested in the lands save those that are named in the petition.”
    On November 11,1902, Bridget Swartzfisher filed an answer to the petition of Susan McMahon to quash the writ of partition and denying the allegations contained therein.
    The Philadelphia and Erie Land Company laid out, in the borough of Renovo, a number of lots. These lots were designated in blocks numbering from one, and so on, consecutively, in which blocks lots were numbered from one, and so on, consecutively.
    On January 3,1868, the Philadelphia and Erie Land Company made and executed a deed to Patrick McMahon for lot No. 4 in block 6, which was recorded in the office for. recording deeds in Clinton county on November 17,1869. Upon this lot Patrick McMahon erected a dwelling house and lived thereon with his family until his death in 1884.
    On October 3, 1877, the Philadelphia and Erie Land Company made and executed to Patrick McMahon and Mary McMahon, his wife, a deed for lot No. 3 in block 6, which deed was recorded on July 10, 1882, in deed book No. 34.
    On June 3, 1884, Patrick McMahon made his last will and testament, which was duly probated June 8,1886, and recorded July 12, 1886, in will book “ B' ” page 530.

      Patrick McMahon went into possession of lot No. 6 in block 8, but it does not appear that he went into possession of lot No. 8 in block 6, although his deed for the same was recorded. Upon lot No 6 in block 3 he erected a hotel and it is known in this proceeding as the hotel property.
    Patrick McMahon in his last will and testament gave and bequeathed absolutely to his son, Michael McMahon, the house and lot which was occupied and used for hotel purposes. All the balance and residue of his property, real, personal and mixed, he gave, devised and bequeathed to his wife, Mary McMahon, she to have entire control of it as long as she lived and at her death he directed it to be divided as follows : “ To my oldest daughter Bridget, wife of Joseph Swartzfisher, or her survivors, I will and bequeath fifty dollars; to my daughters Maria, Susan and Nancy McMahon, I will and bequeath tq each four hundred dollars,” and the balance, after the above amounts were paid to his daughters, he willed and bequeathed to his son, Michael McMahon.
    Michael McMahon died intestate in 1891, and Mary McMahon, the widow, died in 1901, having previously made a will dated November, 5, 1898, which was duly probated on January 13, 1902. By her last will and testament Mary McMahon made the following devise and bequest to her daughter Susan : “ I give, devise and bequeath to my daughter Susan, all that lot or parcel of land situated in the borough of Renovo, in said county, bounded and described as follows, viz.: Northwardly by Erie avenue; eastwardly by lot No. 4; southwardly by St. Clair avenue. Having a front on Erie avenue of twenty-five feet, and extending in depth one hundred and thirty feet. And known and ‘ designated ’ on the general ‘ plan ’ of said borough as lot No. 4 in block 6. To be her property absolutely and ‘forever.’ Provided, however, and I do hereby direct that the said Susan shall furnish a home and maintenance to and for her sister ‘ Misia ’ so long as she be willing to live with her, and in case they shall not agree, or my said daughter Maria shall live elsewhere ‘ then ’ with her sister Susan, that she, the ‘ said ’ Susan, shall pay for and toward the maintenance of my'daughter Maria not exceeding ten dollars per moirth. This provision to continue so long as my said daughter Maria shall live.”

      2. It is entirely clear that Mary McMahon, by her last will and testament, did not devise to her daughter, Susan McMahon, any real estate to which she had title. The property devised to her by the last will and testament of her husband, Patrick McMahon, was lot 4 in block 6, on which was erected a dwelling house, but in this she had only a life estate and she had no authority to make a devise, of this property so as to vest any title in Susan McMahon.
    8. Even if Mary McMahon did own the hotel property, she died intestate as to that, as it is not mentioned or referred to in her will, and having died so intestate, the property would vest in Bridget Swartzfisher, Susan McMahon and Nancy McMahon in equal shares and proportions. Susan McMahon, therefore, did not have such an adverse interest in the real estate proposed to be divided as would prevent the court from acquiring jurisdiction and awarding an inquest of partition. An action of ejectment is, therefore, unnecessary to determine the title of Susan McMahon in the hotel property, and there is no reason why partition should not be proceeded with.
    That the orphans’ court is right in this proceeding to hear evidence upon the claim asserted by Susan McMahon, and, if it is shown to be insufficient, to decline submitting it to a jury in an action of ejectment, is fully sustained by the decisions in the case of the Appeal of Welch, 126 Pa. 297, in which- it was held that “ the denial of the tenancy in common by an heir of the decedent on the return of the writ of partition, with an assertion of title in himself by adverse possession, will not be sufficient to require a suspension of the proceedings, but the court may hear evidence upon the claim asserted and if it be insufficient to justify submission to a jury, may confirm the inquest and proceed with the partition.”
    The other exceptions to the proceedings in partition were not pressed on the argument.
    All the exceptions to the confirmation of the proceedings in partition are dismissed and the inquest of partition confirmed.

      C. S. McCormick, for appellant.
    —-PartitionPartition is made of lands of tenants in common when their possession is common; ejectment is the remedy when the possession of one is adverse to the others: Bigley v. Jones, 114 Pa. 510; Eell’s Est., 6 Pa. 467; Law v. Patterson, 1 W. & S. 184; McMasters v. Carothers, 1 Pa. 324.
    To maintain partition proceedings, the heirs must be in the actual possession of the premises: McMasters v. Carothers, 1 Pa. 324: Wall’s Estate, 24 Pa. C. C. Rep. 560.

      T. 0. Hippie, for appellee.
    A mere naked claim to hold real estate exclusive of a petitioner in partition is not sufficient to stay or prevent partition, especially when the testimony taken together shows no legal or equitable title adversely held: Welch’s App., 126 Pa. 297.
    March 20, 1905:
   Per Curiam,

This decree is affirmed on the very clear and satisfactory opinion of the learned judge of the orphans’ court.

Decree affirmed.