text:
    Shay, Appellant, v. American Iron & Steel Company.

      Negligence — Master and servant — Course of employment — Nonsuit.
    A corporation, operating an iron works is not liable for damages to a house and injuries to the owner, from the negligent shooting of men engaged to take the place of strikers, where it appears that the shooting was directed from defendant’s premises against a mob, that it was not authorized by the defendant, and not within the course of employment of the persons doing it.

      Argued Feb. 18, 1907.
    Appeal, No. 111, Jan. T., 1906, by plaintiff, from order of C. P. Lebanon Co., Dec. T., 1902, No. 139, refusing to take off nonsuit in case of Sallie E. Shay v. American Iron & Steel Manufacturing Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewakt, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries and for injuries to a house. Before Ehrgood, P. J.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Ehrgood, P. J., filing the following opinion:
    The plaintiff is the owner of a house and a lot of ground, situated on Weidman street, in the city of Lebanon, and alleges that on September 20, 1902, several bullets were fired into her dwelling house by employees of the defendant company, damaging her house, and by reason whereof she was frightened and shocked, thereby causing her to be permanently injured.
    From the testimony produced by the plaintiff it appears that at the time of the alleged injury, a large number of the employees of the defendant company were on a strike, and that on the afternoon of September 20, 1902, a car load of colored men, who were engaged to work for defendant, arrived at Lebanon and were taken to its works inside of the fence inclosing the said works. In taking said car with said colored men from the station to the works they were followed by a crowd of men and boys, some of whom jumped on the platform of the car, opened the door and called them vile names, to which no reply was made by anyone inside of the car. When the colored men left the car, at the works inside of the inclosure, the persons congregated on the outside commenced to throw stones and other missiles into the inclosure; a number of shots were then fired from the inside and also from the outside. During this time it is alleged and sworn to by the plaintiff, that a bullet was fired through a second-story window of her house at or near where she was standing, facing the defendant’s works and which was afterwards found imbedded in the wall of the house and which produced the said fright and shock. An attempt was also made by the plaintiff to prove that'the men brought there that day were armed by the defendant company or at their dmection, but failed. The evidence produced by the plaintiff shows that those of the men who had revolvers had them without the knowledge of the defendant company and did the shooting that was done against the protest of the persons who had charge of them. That the colored men were not hired to protect the works or the property of the company, but to operate its works and that the discharge of firearms was not in the course of their employment.
    Assuming for the purpose of this motion that the bullets fired into the plaintiff’s house were fired by employees of the defendant company, it does not follow that the defendant is liable in damages for injury done to her dwelling or injury caused to her person by fright and shock.
    The law is well settled that a master is only liable for injuries resulting from the willful conduct of his servants if inflicted within the scope of his authority or employment: Railway Co. v. Donahue, 70 Pa. 119; Snodgrass v. Bradley, 2 Grant, 43; Pennsylvania Co. v. Toomey, 91 Pa. 256; Scanlon v. Suter, 158 Pa. 275; Rudgeair v. Traction Co., 180 Pa. 333.
    It is contended by the plaintiff’s attorneys that the discharge of the firearms, by the defendant’s employees, was malicious and the evidence produced by the plaintiff justifies the contention. Those who discharged the firearms at the plaintiff’s house did so wantonly and recklessly, and were guilty of a criminal offense and unless it was done within the scope of their employment or by the direction of the employer, and there is no evidence that it was done within the scope of their employment, or by the authority of the employer, the defendant cannot be held liable in damages for injuries suffered by the plaintiff. The acts of the employees complained of by the plaintiff amounting to criminal offenses cannot subsequently be ratified by the defendant company; Building and Loan Association v. Walton, 181 Pa. 201; Shisler v. Vandike et al., 92 Pa. 447.
    Where the new evidence by diligence could have been obtained at the time of trial, a new trial will not be granted: Mellinger v. Railroad Co., 18 Lanc. 369; Forney v. Ebersole, 18 Lanc. 372; Gardner v. Hookey, 18 Lanc. 326; Com. v. Myers, 16 York, 106; Connellee v. Ziegler, 16 York, 169.

      The proposed testimony must appear to have been discovered since the trial without want of due diligence : Marsh v. Moser, 1 Woodward, 218.
    It must be shown that it could not have been discovered by the exercise of reasonable diligence: Stanton v. Kemmerer, 5 Kulp, 114.
    We are not satisfied that diligence was used in this case to procure the proposed witness at the trial. This case was commenced in 1902, and not tried until the beginning of December, 1905, when within four days after the nonsuit was entered, the proposed witness was found and his affidavit was procured. If due diligence had been used by the plaintiff this witness could have been found during the time this case was pending before trial.
    And now, February 21, 1906, the motion to take off the nonsuit is refused. Exception to plaintiff.

      Error assigned was refusal to take off nonsuit.

      Robert L. Adams, with him Paul G. Adams and J. O. Adams, for appellant.
    The shooting was within the scope of the negroes’ employment: Allegheny Valley R. R. Co. v. McLain, 91 Pa. 442; Lake Shore & Mich. Southern Ry. Co. v. Rosenzweig, 113 Pa. 519; McClung v. Dearborne, 134 Pa. 396; Hennessey v. Baugh & Sons Co., 29 Pa. Superior Ct. 310; Brunner v. American Telegraph, etc., Co., 151 Pa. 447; Devlin v. Beacon Light Co., 198 Pa. 583; Whaley v. Citizens’ Nat. Bank, 28 Pa. Superior Ct. 531.

      Gobin MeGwrdy, for appellee,
    were not heard.
    May 13, 1907:
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing to take off the nonsuit.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Buckley, Appellant, v. Kilker.

      Equity — Injunction—Preliminary injunction — Execution at law.

    A preliminary injunction will not be granted to stay an execution at law merely because the plaintiff in the execution issued the writ against the complainant's property when there were other properties subject to the lien of the same judgment which had been entered on a joint and several bond; and this is the case although the bill alleges that the attorney for the execution plaintiff was also the attorney for the owners of the other properties bound by the judgment, and that he issued the execution against the complainant's property to save the properties of his clients.
    Argued Feb. 18, 1907.
    Appeal, No. 92, Jan. T., 1907, by-plaintiff, from decree of C. P. Schuylkill Co., March T., 1907, No. 2, refusing a preliminary injunction in case of Ellen Buckley v. M. A. Kilker, Solicitor for the School Board of the School District of Girardville Borough, and the School District of the Borough of Girardville.
    Before Mitchell, C. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill was substantially as follows:
    Your orator complains and says that she is a resident and taxpayer of the borough of Girardville. And that M. A. Kilker, one of the defendants, is solicitor for the school board of said school district. That one Thomas Horan was tax collector for said school district for four successive years and gave his bond in the sum of $30,000 for each year, upon which four bonds judgments were entered. Your orator under article of agreement, of November 1, 1905, and by deed, of April 14, 1906, purchased two certain lots from Michael Horan, one of the several sureties on said bonds. That on April 11, 1906, the said school board by resolution directed the said M. A. Kilker, its solicitor, to proceed against the bondsmen, to compel them each to pay his or her proportionate share. That the said M. A. Kilker contrary to the instructions given to him by said school board proceeded to collect the whole amount due on the several judgments from the property of your orator. That your orator paid the whole amount due on the first judgment, to wit: $602.78, which was more than her proportionate share due on all of the said judgments, and asked to be subrogated, whereupon the said M. A. Kilker appeared in court as attorney for eight of the defendants in the judgments. That the said M. A. Kilker, without any authority, has since issued two more writs of venditioni exponas, under which your orator’s property is advertised for sale on February 9, 1907. That your orator is financially unable to pay the whole amount due for debt and costs on said several judgments and in that way protect herself by subrogation from the effects of the said several unauthorized executions. And your orator believes that her said property is being unjustly and exclusively pursued by said M. A. Kilker because he in fact represents certain of the defendants in said judgments and is laboring to shield them from liability. ,J
    The bonds referred to in the bill were joint and several bonds.
    The court refused a preliminary injunction.

      Error assigned was the decree of the court.

      William Wilhelm, with him Edward J. Magimnis, for apj pellant.

      George M. Roads, with him M. A. Killter, for appellees.
    May 13, 1907:
   Per Curiam,

This being a bill for injunction against an execution at law we follow the usual practice in saying that no case has been made out for a preliminary injunction, and dismiss the appeal without discussion of the merits.

Appeal dismissed.


text:
    Bright v. Morgan, Appellant.

      Party wall — Division wall — Adverse use.

    Where a person erects a building on his own lot, and inserts the joists thereof in a wall which is wholly upon his neighbor’s lot adjoining, and the use of the wall as a support for the joists is continued for over twenty-one years, the right to use the wall must be determined, in the absence of any evidence of an agreement, by the use actually made of the wall, and must be limited to the extent to which the wall has been used without any right to place any further burden thereon.
    Argued March 4, 1907.
    Appeal, No. 370, Jan. T., 1906, by-defendant, from, decree of C. P. Berks Co., No. 881, Equity Docket 1905, on bill in equity in case of Joseph C. Bright v. Mary Morgan et al.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Ekmbntrout, P. J., filed the following opinion:
    From the evidence submitted I make the following.
    findings of fact.
    1. Joseph C. Bright, the plaintiff, is the owner in fee simple, and has possession of a lot of ground with store building thereon erected, Nos. 504-506 Penn street, Reading, Pa. Said property is bounded on the west by a hotel property known as the Mansion House.
    2. The defendants, Mary Morgan and E. Miltimore Morgan, own in fee simple the said hotel property known as the Mansion House, having for its eastern boundary the aforementioned property of Joseph C. Bright. The trust company of North America and James Nolan, trustee, are named as parties defendants because each of them holds a mortgage upon the Mansion House property, and the said Joseph D. C. Unable is named as a defendant because he is in possession of the said property under a long lease thereof made by the said Mary Morgan and E. Miltimore Morgan to him.
    3. So far as the purposes of this case are concerned, I find that Harriet deBenneville Keim was the predecessor in title of both plaintiff and defendants; that plaintiff’s property was part of a lot of ground numbered in the general plan of the city of Reading No. 15, and the defendants’ property was part of a lot of ground numbered in the general plan of the said city, No. 16.
    4. Prior to February 13,1856, back to 1841, and practically unchanged until 1856, there was erected upon the property of the plaintiff a three-story brick house with attic fronting on the south side of Penn street, along the western wall of which house and to the depth of thirty-three and one-half feet southward extended an alley three feet in width, the alley and the ground upon which it Aims located also originally belonged to said lot No. 16, and which said strip of ground was shortly before February 13, 1856, attached to the said three-story brick house property as an alley, the fee thereof then vesting in said Harriet deBenneville Keim. At or about said date the said western wall on plaintiff’s property was and had remained in its appearance and construction as it had existed and had been constantly maintained upon the property from the time it AA7as built, the defendants and their predecessors having no right or title thereto, or any interest or rights whatever therein. The said Avestern wall of said building was what is known as a gable end with the center projecting above the roof and the roof sloping therefrom both ways to the north and south respectively. The defendants’ property at that time consisting of a two-story brick building situate on the corner of Fifth and Penn streets, standing back from the building line of Penn street, completely and totally departed from the building of plaintiff by said three-feet alley, Avas then OAvned by the MUtimore estate, one "William L. DeBorbon being in possession of the said hotel property as life tenant.
    5. On February 13, 1856, Harriet deBenneville Keim conveyed the three feet of ground Avhereon said alley was located to William L. DeBorbon, the deed description of the said ground so conveyed being as MIoavs : “ All that certain lot, strip or piece of ground, situate on the south side of Penn street, commencing at a distance of fifty-seven (57) feet east of Fifth (formerty Callowhill) street in. the said city of Reading, thence extending eastward three (3) feet, containing in front or breadth on said Penn Street three feet by thirty-three-and-a-half feet in depth, bounded on the north by the said Penn Street, on the west by a part of a lot. of ground on which, is erected the Mansion House, belonging to the said'William L. DeBorbon, numbered in the general plan of said City No. 16, of which this strip of ground was formerly a part, on the south by other part of said No. 16, and on the east by part of the lot numbered No. 15, in said plan belonging to the said Harriet deB. Keim, to which this strip of land was lately attached as an alley.”
    6. In 1856, after the acquisition of the narrow strip of ground upon which the alley had been located, Mr. DeBorbon enlarged or reconstructed his Mansion House building, extending it across the three feet of ground which had been used for the alley, and inserted the joists of his building in the western wall of the Keim building, using that wall as part of the eastern wall of his hotel building. The use then made of this wall was by inserting the joists of the Mansion House therein, building against it, supporting some of the joists of their building thereon, and building upon the top of the eastern southern portion of the said wall for the purpose of raising the Mansion House four stories in height. Defendants in their answer admit that upon this occasion the said wall was used as part of the Mansion House property to a depth of forty-three feet, five inches south from Penn street. At the time these improvements were made Harriet deB. Keim was the owner of plaintiff’s building. There is no evidence of record nor have any of the parties to this litigation shown any agreement or arrangement or the terms thereof under which Mr. DeBorbon, in 1856, inserted the joists of his enlarged hotel building in the western wall of Mrs. Keim’s building. Nor up to the time of the bringing of this bill in equity does it appear that any objections thereto have been made by the plaintiff or his predecessors in title.

      1. On May 31,1898, plaintiff acquired title to this property from Bright & Lerch, Limited, who acquired title to it on May 29, 1883. Bright & Lerch, Limited, was a limited co-partnership organized under the laws of the commonwealth of Pennsylvania, of which copartnership plaintiff owned two-thirds of the stock outright, and virtually owned sufficient of ' the remainder of the stock to make his entire holdings three-fourths of the stock of the said copartnership.
    8. About the year 1905, Bright & Lerch, desiring to enlarge the store building upon their property, tore down the whole building with the exception of the western wall aforesaid, and in the reconstruction of their new building used said wall as a curtain wall, thereby meaning simply a wall to inclose the building, a steel structure being built into the wall a few inches, with flat columns located on their own foundation from the foundations up to the top of the roof, the girders being slipped into these.
    9. In the fall of 1896, defendants increased the height of the Mansion House building by adding two stories thereto, and for that purpose increased the height of the said wall, and inserted and supported additional joists of the new part of their building in and on part of the wall so added.
    10. At no time, neither when Bright &Lerch enlarged their building nor when the defendants and Mr. DeBorbon increased the height of their building, does it appear there was any written or parol agreement or any conversation by or between the parties hereto as to their respective rights in the wall; nor does it anywhere appear that any examination of the respective rights of the parties in and to said wall was ever made, all of the said various building operations being plainly visible and known to all the parties, plaintiff and defendants, owners at the time of their being carried on.
    11. I find that the outer wall of the plaintiff’s property is entirely upon the property of the plaintiff and belongs to him, and that at no time by any use, acts or agreement of the respective parties to this bill, or their predecessors in title, did it ever become a party wall, and that the rights of the defendants are as follows : The support of the joists of the Mansion House building in and upon said wall as the said building has been and now is, and as the said joists have been and are now inserted and supported therein and thereon.
    12. When the defendants enlarged their Mansion House building in 1896, by building upon said wall, they believed they had a right torthe use of the said wall in common with the plaintiff, and the plaintiff and Bright & Lerch knew that the defendants were so enlarging the Mansion House. The enlargement could be seen from the street, the plaintiff coming to Reading about once a week while the building operations were going on.

      13. Plaintiff’s bill alleges “ that the said Mary Morgan and E. Miltimore Morgan assert an ownership by them of the said wall and aright to further increase the height of the same, and that the acts and claims of ownership so done and made by the said Mary Morgan and E. Miltimore Morgan create a cloud upon your orator’s title, and your orator fears that by lapse of time and the subsequent loss of evidence, the said acts and claims will give to the said Mary Morgan and E. Miltimore Morgan rights in the said wall and in the ground whereon the said wall is built and rests, in derogation of your orator’s ownership thereof, and your orator is suffering and will suffer irreparable injury therefrom, and your orator has no adequate remedy at law.” Defendants in their answer admit that they use said wall as part of the said Mansion House property, but deny that they have any present intention of raising said wall and enlarging their use of the same, but aver that such use would not invade any of the plaintiff’s rights, and aver that they have a right to the use of said wall in common with the said plaintiff. Under the pleadings and the facts, courts of equity have jurisdiction of the subject, and the plaintiff is entitled to relief.
    14. The plaintiff does not ask for any decree obliging the defendants to open their building by removing the additional wall erected in 1895, but simply asks that they be restrained from further aggression upon his rights.
    FINDINGS OF LAW.
    1. There being no evidence showing or tending to show the terms of the arrangement under which Mr. DeBorbon in 1856 began to use the plaintiff’s wall, the extent of the right to use the wall acquired by Mr. DeBorbon must be determined and measured by the use he actually made of the wall, and must be limited to the extent to which the wall has been used.
    2. Defendants have no right to place any further burden on the wall, but may continue the use to the extent to which it has been practiced: McManus v. Mcllvaine. 2 Woodw. 146.
    DISCUSSION.
    Upon an examination of the authorities relating to party wall, I find the following principles to be well settled :

      Where a building wall is located entirely upon the property of one adjoining owner, there is no presumption that such a wall is a party wall, and, therefore, where one person goes upon the property of another, and wrongfully and without any claim of right builds upon a wall, he is a trespasser, and he will be compelled by injunction to remove the wrongful construction : Bright v. Allan, 203 Pa. 394. To prevent his being a trespasser he must show either a grant or a prescriptive right of use or agreement or consent so to use it.
    In amplication of this statement of law it has been decided that “ the erection of a division wall by one of two adjoining owners under an agreement that the other shall pay his share of the costs upon making use of the wall renders the wall a party wall: ” Euwer v. Henderson, 1 Pennypacker, 463.
    It has also been decided that “ a wall erected and continually used as a division wall by adjoining owners for twenty-one years is a party wall, even though it does not rest on the division line but is wholly within the land of one of the adjoining owners : ” Appeal of Western National Bank, 102 Pa. 171; McVey v. Durkin, 136 Pa. 418; Lukens v. Lasher, 202 Pa. 327.
    It is also decided that “ a preliminary injunction to restrain the taking down of an alleged party wall will not be sustained where it appears that the wall was entirely on the land of the defendant, and where, there being no express grant, the easement or right of plaintiff to have the wall maintained as a party wall must depend wholly upon prescription based upon a user invisible to and unknown by the owner, who was a successor in the title after the alleged imposition of the easement: ” Harrison v. Bank, 13 Pa. Superior Ct. 274.
    It is also well established that where there is no evidence, either written or oral, as to the terms under which a division wall has been used, the court cau only determine what the terms were by what was done without dispute by the parties on the land at the time -of the erection of the buildings, and subsequently, as in case of an easement by prescription, and in case of the prescriptive use of the party wall, the right is limited to the extent to which the wall has been used: Bright v. Allan, 203 Pa. 394; Allegheny National Bank v. Reighard, 204 Pa. 391; Putzell v. Drovers’ & Mechanics’ Nat. Bank, 78 Md. 349 (28 Atl. Repr. 276); Barry v. Edlavitch, 84 Md. 95 (35 Atl. Repr. 170).
    The last two cases are especially pertinent to the one under consideration. The defendants by the DeBorbon operations acquired a prescriptive right in the wall to the extent of its use. The plaintiff having' the wall upon his property could use his own wall for any purpose desired without intendment being made against him that by such use it has become a party wall.
    In Putzell v. Drovers’ & Mechanics’ Nat. Bank, 78 Md. 349 (28 Atl. Repr. 276), the rights of the defendants by such actions are thus defined: “ The- defendant had used his wall for more than twenty years as a support to his house ; the enjoyment of it for this purpose had been notorious, peaceable, uninterrupted and ‘ as of right.’ Under these circumstances, the law considers that he had a prescriptive title to the use of it in the manner in which he had enjoyed it. It is conducive to the peace of society that claims of right which for a long time have been acquiesced in and regarded as settled be protected by the law, and the space of twenty years has been adopted as the period for ripening claims of this description into titles. . . . The adjoining owner retained all its rights in the division wall which are not inconsistent with the enjoyment of the easement. It was bound to permit it to be used as a support for the adjoining owner’s house in the accustomed manner, but this is the limit of its obligation. It would be unreasonable to deny to it the right to improve its own property according to its interests and inclinations, provided it did not infringe the rights of other persons.”
    In the case of Barry v. Edlavitch, 84 Md. 95 (35 Atl. Repr. 170), the respective rights of adjoining owners are thus defined : “Now in this case the wall in question stands wholly on the land of Barry, and there is nothing in the ease, beyond this fact, to explain the use of the wall by Edlavitch. ... It was a mere burden upon his property, open, adverse and acquiesced in by him. No other inference whatever can be drawn from its existence, except that which the law implies, viz.: a grant to do the things that had been done for so long a time. There is nothing in the case from which it can be presumed that either party intended that the wall should be a party wall, except to the extent and for the purpose of supporting the appellee’s building as it had been supported for so many years. That was, therefore, the extent of the appellee’s right, namely, to enjoy the use of the wall for the support of his house as it then existed: The wall being the property of the appellant, and on his own lot, there can be no reason assigned why he could not strengthen it, and add to its height, if he chose to do so, provided it was done without detriment to the other party’s right.”
    We are relieved of all discussion as to the rights the defendants acquired under the operations of 1896. The plaintiff at the hearing expressly declined to oblige the defendants to open their building by removing the additional wall erected in 1896, but asks that they be restrained only from a further alleged aggression upon his rights. We have, therefore, in the findings made, limited the defendants to the rights of support and uses of the wall as they actually exist at present. This necessarily will give them the full right to repair the wall and uphold and maintain whatever rights thereto they now actually enjoy.
    The plaintiff is entitled to the relief asked for, and counsel for plaintiff may prepare for submission and signature of the court a decree accordingly.

      Error assigned was decree awarding the injunction prayed for by the bill.

      W. K. Stevens, of Stevens dé Stevens, for appellants.
    The western wall of the Bright property being a division wall to a depth of forty-three and a half feet southward from Penn street, and having been continuously used in common bj^ the adjoining owners for above twenty-one years, is a party wall, even though it is wholly built within the land now owned by the plaintiff : Graves v. Smith, 87 Ala. 450 (6 So. Repr. 308); Fettretch v. Leamy, 22 N. Y. Super. Ct. 510; Harber v. Evans, 101 Mo. 661 (14 S. W. Repr. 750); McVey v. Durkin, 136 Pa. 418; Western Nat. Bank’s App., 102 Pa. 171; Lukens v. Lasher, 202 Pa. 327; Bright v. Allan, 203 Pa. 394.

      Cyrus G. Derr, for appellee,
    was not heard.

      May 13, 1907:
   Per Curiam,

The decree is affirmed on the findings and discussion of law , by the court below.


text:
    Scott, Appellant, v. Murray.

      Wills — Estate in fee simple — Conditional estate — Defeasible estate— Gift to widow.

    Where a testator devises all his estate, real, personal and mixed to his wife "and her heirs and assigns forever so long as she remains my widow,” and the widow dies without having remarried, she dies seized of an estate in fee simple.
    Argued March 5, 1907.
    Appeal, No. 26, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. Term, 1906, No. 797, for defendant on case stated in suit of W. L. Scott and C. L. Saxton v. R. J. Murray.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Case stated to determine the marketable title to real estate.
    Prom the record it appeared that plaintiff claimed title by mesne conveyances from Sarah McWhinney. Mrs. McWhinney’s title was derived under her husband’s will, the material portion of which was as follows:
    “ 1. I give, bequeath and devise all my estate, real, personal and mixed, of every kind whatsoever, to my dear wife, Sarah McWhinney, .and her heirs and assigns forever, so long as she remains my widow.”
    The court in an opinion by Brown, J., following Cooper v. Pogue, 92 Pa. 254, held, that Mrs. McWhinney took only a life estate, and consequently entered judgment for defendant.

      Error assigned was the judgment of the court.

      O. E. Theobald and J. A. Langfitt, of Langfitt d; McIntosh, for appellant.

      W. I). N. Rogers, with him O. 8. Richardson, for appellee.
    May 13, 1907:
   Per Curiam,

Testator devised all his estate, real, personal and mixed to his wife “ and her heirs and assigns forever.” This was a fee simple in the very language of the books, and if he had stopped here there could have been no question. But he added, “so long as she remains my widow.” These words, however, do not indicate any intention to cut down the quantum of estate granted, which is never done except in obedience to a clear intent. No such intent is expressed here. On the contrary, the words are equivalent to saying “provided she remains my widow,” and instead of cutting down the estate, merely attached a condition which made it defeasible in toto on a'breach. The widow not having remarried died seized in fee.

The learned court below thought the case governed by Cooper v. Pogue, 92 Pa. 254. But the operative language of the will there was “ to my wife, so long as she remains my widow, I give the income of the home farm .... also the Mansion House,” etc. There was no primary gift of the fee as in the present case, but a gift of income and profits, expressly limited to widowhood, and the court held that the devise of the Mansion House, etc., was limited to the same estate. The present case is more analogous to Redding v. Rice, 171 Pa. 301, and is a stronger case for a fee.

Judgment reversed and judgment directed to be entered for plaintiff.


author: Mr. Justice Brown,

text:
    Schwarz v. Delaware, Lackawanna & Western Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing in open country — “Stop, look and listen” — Evidence—Speed.
    In an action against a railroad company to recover damages for the death of a person at a grade crossing, the presumption that the deceased stopped, looked and listened, is not overcome by the testimony of a single witness, the engineer of the locomotive, who stated that he did not see the deceased stop, where it appears from the witness’s own testimony that he was not in a position to see whether the deceased stopped or not.
    When a witness testifies that, at or near a railroad crossing, his attention was upon an approaching train, that he was listening for it, heard its approach and heard no whistle, his testimony is not of a negative grade, but may be regarded, if believed, as proof that no whistle had been sounded, and it receives additional weight when taken in connection with the testimony of other witnesses which may be of a negative character.
    In a grade-crossing case where a time-table is offered to show distance between points as a basis for fixing speed, it will not be rejected merely because of the allegation on the part of the railroad company that the distances were only approximate, but leave will be given to the company to show that it was not correct.
    In an action against a railroad company to recover damages for death at a grade crossing in the open country, where there is nothing in the case to show that the warning by a whistle of the approach of a train at the crossing could not have been heard, and nothing to show that looking and listening would not have protected the deceased, it is reversible error for the court to so charge, that the jury may find a verdict in favor of the plaintiff simply because the train was running at a high rate of speed, even if the proper warning had been given of its approach.
    It is not the rate of speed that prevents the traveler from passing safely over a railroad crossing in an open country, but the failure to give notice of the approach of the train by those in charge of it, or disregard of such notice by the traveler when given.
    If one about to cross a railroad in the open country stops and listens, and no train is heard, that is, no warning of its approach is given by the engineer, the railroad company cannot, under such circumstances run its train at such a reckless rate of speed as will run down the unwarned traveler-.
    Argued March 12,1907.
    Appeal, No. 374, Jan. T., 1906, by defendant, from judgment of C. P. Monroe Co., Peb. T., 1901, No. 11, on verdict for plaintiff in case of Richard F. Schwarz v. Delaware, Lackawanna & Western Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for death. Before Trexler, P. J., specially presiding. See 211 Pa. 625
    The facts appear by the opinion of the Supreme Court.

      At the trial defendant presented the following points :
    1. Under all the evidence in this case the verdict of the jury should be for the defendant. Answer : The first point is refused without reading. [1]
    3. In the absence of all evidence on the subject the presumption is that the decedent observed the precautions which the law prescribed, to stop, look and listen at a safe and proper place before driving upon the crossing. This presumption is a presumption of fact and is slight and faint at the best in this class of cases, and is completely overthrown by the affirmative proof to the contrary by the witness Riley, who testified that he was watching the horses and wagon from a point at least thirty feet away from the crossing, and that they did not stop before they were struck. Answer: The third point is refused without reading. [2]
    5. There is no limit to the rate of speed at which a railroad company may run its trains through the open country and over the crossings of country roads, so long as the bounds of safety to patrons are not transgressed. Answer: The fifth point is refused without reading. [3]
    6. Where the exact rate of speed of a train, as shown by its schedule and testified to by the engineer, who was running the same, shows a rate of speed of forty-five miles an hour, the court will consider of no value the testimony of a witness who states that the train was running very fast, but does not state how fast, nor fix any standard by which the speed of the train could be ascertained. Answer: The sixth point is refused without reading. [4]
    7. It is not negligence for a railroad company to run a passenger train in the nighttime or early morning, an hour behind its schedule túne and over a country crossing at the rate of forty-five miles an hour. Answer: The seventh point is refused without reading, it being covered in the general charge. [5]
    8. The negative testimony of five witnesses that they did not hear the whistle blown, especially where all of said witnesses were a long distance away from the point where it° became the duty of the engineer to blow his whistle, it being no part of the duty of such witnesses to listen for the approaching train or its signal, and their attention' not having been called to the fact of whether or not the whistle was blown by any circumstance whatever, amounts only to a scintilla, and cannot prevail against the overwhelming and positive testimony of the engineer and all the members of the train crew, and of two other wholly disinterested witnesses who were standing, the one about 100 feet and the other about 200 feet from the engine when it was whistling, and who watched it as it whistled and testify positively that the train did whistle. In such a case this positive testimony conclusively establishes the fact that the trainmen performed their duty, and the plaintiff is not entitled to. recover. Answer: The eighth point is refused without reading. [6]
    The court charged in part as follows:
    [There is one question involved in the matter, and that is the question of speed. Ordinarily a railroad company has the right in the country districts, in the open countay, to run its trains at such speed as it believes to be right or thinks proper. That is the general principle of law. If, however, the circumstances in any case are such that, running a train at a high rate of speed would prevent a person entering a crossing to get over before the train would get at the crossing, then it is the duty of the railroad company to moderate its speed. I state the matter plain in this connection, in order that there will be no quibbling about what the court says, and in order that if the court is wrong, it may be consistently wrong.] [I]
    [Where there is much travel at all hours over a crossing, it is the duty of the company not to accelerate, but to moderate the speed of its trains. This, of course, applies to only exceptional cases. Ordinarily the ordinary country crossing does not admit of any qualification of this rule, but where the circumstances are differeiit, there it is the duty of the company to moderate its speed. Now in this case, you will remember there is some testimony that at the crossing there was a creek nearby, the noise of which may have prevented the hearing of approaching trains, and the alarm given thereby. There is also some testimony that there was a tie yard along the road, between the road and the railroad track. There is also some testimony that there was a bluff along the track in the neighborhood of this crossing or a little beyond, and there is also testimony that there were trees in foliage along the track. . Whether all of these elements would be present to determine at what distance the whistle should sound, and as to what speed the locomotive and the train should approach the crossing, is a matter for you to determine. The question is, what, was the speed of the train upon this day, and after you have determined that, then the question is, taking the alarm given and the place it was given, would it afford sufficient time for a person entering upon the track of the railroad to pass over or to back, if that were feasible, in order to get out of the way of the approaching train.] [8]
    [The engineer testified that the speed was forty-five miles an hour, that is my recollection of it, and the train crew testified to a speed of, varying from thirty to forty miles an hour, as I remember it, but what the exact figures are, they are for you. The witnesses for the plaintiff testified that the speed was a rapid one, but I do not think any of thqm testified to a certain rate of speed. It is apparent, gentlemen of the jury, that all these statements are but estimates. We have no testimony in this case which would fix with mathematical precision the exact rate of speed that the train was going at, at the time that these boys were struck, and it is therefore for you, under all the evidence in the case, to determine at what rate of speed this train was going, and I recur to this, and you may apply it to my former instructions as to the rate of speed as bearing upon the question as to whether the alarm was given at the right place and whether it was sufficiently given, under all the surroundings in this case, as described by the witnesses.] [9]
    Yerdict and judgment for plaintiff for $4,282.50. Defendant appealed.

      Errors assigned were (1, 9) above instructions, quoting them; (11) admitting in evidence time-table referred to in the opinion of the Supreme Court.

      A. Mitchell Palmer, with him Everett Warren, for appellant.
    There was sufficient evidence to rebut the presumption that deceased stopped, looked and listened : Lonzer v. R. R. Co., 196 Pa. 610.

      The amount of negative testimony to show negligence was not sufficient to carry the case to the jury in the face of strong positive testimony showing absence of negligence on the part of defendant’s servants: Culhane v. R. R. Co., 60 N. Y. 133; Haverstick v. Penna. R. R. Co., 171 Pa. 101; Knox v. Ry. Co., 202 Pa. 504; Hauser v. Central R. R. Co., 147 Pa. 440.
    Speed of the train was not evidence of negligence under the circumstances: Newhard v. Penna. R. R. Co., 153 Pa. 417; Childs v. Penna. R. R. Co., 150 Pa. 73; Custer v. B. & O. R. R. Co., 206 Pa. 529.

      F. B. Holmes, with him J. H. Shull, O. O. Shull and Samuel E. Shull, for appellee.
    The evidence of negligence was sufficient to carry the case to the jury : Daubert v. D., L. & W. R. R. Co., 199 Pa. 345; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Quigley v. Delaware & Hudson Canal Co., 142 Pa. 388; Cromley v. Penna. R. R. Co., 211 Pa. 129; Bartholomew v. Kemmerer, 211 Pa. 277.
    The speed of the train was evidence of negligence: Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Ellis v. R. R. Co., 138 Pa. 506; Bard v. P. & R. Ry. Co., 199 Pa. 94; Custer v. B & O. R. R. Co., 206 Pa. 529; Schwarz v. D., L. & W. R. R. Co., 211 Pa. 625.
    May 13, 1907:
   Opinion by

Mr. Justice Brown,

When this case was here before (211 Pa. 625), on appeal from the refusal of the court below to take off a judgment of nonsuit, we held that on the evidence submitted by the plaintiff the liability of the defendant was for a jury. On this second trial nothing offered by way of defense would have justified the court in directing a verdict for the appellant, and, but for a single error, the judgment would be affirmed.

The first contention of the appellant is that, from the testimony submitted by it, the presumption that the deceased had stopped, looked and listened was completely overcome and the court ought to have so instructed the jury. But a single witness, the engineer in charge of the locomotive, ivas called in the attempt to show that they had not stopped. He, however, does not say that they did not stop. His testimony is, “ I did not see them stop.” It is fairly argued by counsel for appellee that he was not able to say they had not stopped. He admits that between his seat in the locomotive ancl the road the boiler intervened at an elevation of nine inches above the level of his eyes. This in itself would have prevented his full view of the team as it approached the railroad, and he says that if the' deceased had stopped at the foot of the ascent to the tracks he could not have seen them. His testimony as a whole, instead of having the effect claimed for it by the appellant, could have been of little, if any, use to the jury on the question of stopping,

A second complaint of the appellant is that in view of the positive testimony submitted by it that proper notice of the approach of the train had been given by a whistle, the court ought not to have permitted the jury to find that such warning had not been given on what is termed the negative testimony of plaintiff’s witnesses. When a witness testifies that, at or near a railroad crossing, his attention was upon an approaching train, that he was listening for it, heard its approach and heard no whistle, his testimony is not of a negative grade, but may be regarded, if believed, as proof that no whistle had been sounded, and it receives additional weight when taken in connection with the testimony of other witnesses which may be of a negative character: Longenecker v. Penna. R. R. Co., 105 Pa. 328; Quigley v. Canal Co., 142 Pa. 388; Daubert v. Delaware, Lackawanna & Western R. R. Co., 199 Pa. 345. Pive witnesses were called by the plaintiff who testified they heard no whistle before the train struck the wagon. Pour of them were in close proximity to the crossing, and one of them, James Anderson, a railroader of five years’ experience, was at work in his yard. He testified that when he heard the train coming he stopped work and listened for a minute or more. At the rate of speed testified to by the engineer, it must then have been three-quarters of a mile away from him. He said he listened and heard no whistle. This testimony could not be ignored. The weight of the testimony as to the whistling may have been with the defendant, but, even if the court below so thought, and we so think, it conflicted with that submitted by the plaintiff, sufficient, if believed, to justify a finding that the whistle had not been blown, and it was, therefore, for the jury alone to pass upon this important disputed question of fact: Cromley v. Penn. R. R. Co., 211 Pa. 429.

As the ease must be retried, we need not consider the tenth assignment, which complains of the court’s refusal to allow the appellant to file an additional reason for a new trial. The time-table offered in evidence by the plaintiff, showing the distance between Stroudsburg and Water Gap, was published by the company itself, and, therefore, presumably correct. It was offered in evidence to show the distance between these points, as a basis for fixing the speed at which the train was approaching the crossing. The sole objection to it as evidence was that the distance as given in it between the stations was only approximate, that it had not been printed for the purpose of showing the distance with any accurac,y, but only for the general information of travelers. It was admitted with leave to the company to show that it was not correct, and, as the objection to it was properly overruled, the eleventh assignment is dismissed.

In his instructions to the jury the trial judge said : “ There is one question involved in the matter, and that is the question of speed. Ordinarily a railroad company has the right in the country districts, in the open country, to run its trains at such speed as it believes to be right or thinks proper. That is the general principle of law. If, however, the circumstances in any case are such that, running a train at a high rate of speed would prevent a person entering a crossing to get over before the train would get at the crossing,"then it is the duty of the railroad company to moderate its speed. I state the matter plain in this connection, in order that there will be no quibbling about what the court says, and in order that if the court is wrong, it may be consistently wrong.” This was error, repeated in the court’s refusal to affirm the fifth and seventh points presented by defendant. From that portion of the charge quoted the jury might have found a verdict in favor of the plaintiff simply because the train was running at a high rate of speed, even if the proper warning had been given of its approach. There was nothing in the case to show that the warning, by a whistle, of the approach of a train at the crossing could not be heard; nothing to show that looking and listening would not protect the traveler from danger at that point. Further on the trial judge said what is the subject of the eighth assignment of error : “ Where there is much travel at all hours over a crossing, it is the duty of the company, not to accelerate, but to moderate the speed of its train. This, of course, applies to only exceptional cases. Ordinarily the ordinary country crossing does not admit of any qualification of this rule, but where the circumstances are different, there it is the duty of the company to moderate its speed. Now in this case, you will remember there is some testimony that at the crossing there was a creek nearby, the noise of which may have prevented the hearing of approaching trains, and the alarm given thereby. There is also some.testimony that there was a tie yard along the road, between the road and the railroad track. There is also some testimony that there was a bluff along the track in the neighborhood of this crossing or a little beyond, and there is also testimony that there were trees in foliage along the track. Whether all of these elements would be present to determine at what distance the whistle should sound, and as to what speed the locomotive and the train should approach the crossing, is a matter for yon to determine. The question is, what was the speed of the train upon this day, and after you have determined that, then the question is, taking the alarm given and the . place it was given, would it afford sufficient time for a person entering upon tbe track of the railroad to pass over or to back, if that were feasible, in order to get out of the way of the way of the approaching train ? ”

If the question had been as to where the whistle ought to have been blown, there might have been no error in the court’s submitting the rate of speed to the jury to enable them to determine how far from the crossing the signal ought to have been given. The instructions complained of may have been intended for that purpose, but they could hardly have been so understood by the jury, for they were told that where there is travel at all hours over a crossing, it is the duty of the company to moderate the speed of its trains. There was nothing to show that a traveler approaching this crossing could not have heard the whistle if it had been sounded. The case was tried on the theory that no whistle had been blown, not as' to where it ought to have been blown, and the speed of the train was not involved. The crossing was in an open country, and in the direction from which the train was coming there was an unobstructed view of 600 feet. Its speed was immaterial, for sight and sound would have availed to protect the deceased from collision with it.

It is not the rate of speed that prevents a traveler from passing safely over a railroad crossing in an open country, but the failure to give notice of the approach of the train by those in charge of it, or disregard of such notice by the traveler when given. What we said in 211 Pa. may have been misunderstood by the trial judge. All that was there said, or intended to be said, was that if one about to cross a railroad in the open country stops and listens, and no train is heard, that is, no warning of its approach is given by the engineer, the railroad company cannot, under such circumstances, run its train at such a reckless rate of speed as will run down the unwarned traveler. This simply means that it is not the rate of speed that is the negligence of the company, but the failure to give proper notice of the approach of the train. With proper warning given of such approach in an open country, rate of speed is not a question in determining whether the railroad company was negligent, and this has been settled in our own and other states.

In Reading & Columbia R. R. Co. v. Ritchie, 102 Pa. 425, we said : “ The very purpose of locomotion by steam upon railways is the accomplishment of a high rate of speed in the movement of passengers and freight. It is authorized by law, and a railroad company in propelling its trains at high speed along its tracks in the open country is simpl}r engaged in the lawful exercise of its franchise. If it is evidence of negligence that a train is run at this rate of speed, it must be because running at a less rate is a legal duty, but there is no such duty established either by statute or decision.” One of the complaints of the plaintiff in Childs v. Pennsylvania R. R. Co., 150 Pa. 73, whose husband was killed at a railroad crossing in a rural portion of Philadelphia, was the rate of the speed of the train, the testimony showing it to have been from forty-five to fifty miles an hour. She was allowed to recover because the jury 'found proper warning had not been given of the approach of the train, but as to her contention that its speed was negligence, it was said: “We do not think any question of negligence grows out of the rate of speed upon these facts. The right of a railroad to move its trains at such rate as the necessities of its business, or the requirements of the public may make necessary, is subject only to such restrictions as maj' be found necessary in cities and populous towns. In the crowded centers of business and population the public safety requires the speed to be moderated, but in the open country the single traveler over the wagon road may, under all ordinary circumstances, provide for his safety by compliance with the rule of law and of common sense that requires him to stop, look each way along the track and to listen, for an approaching train, before attempting to cross the track. The movement of trains must be regulated by the railroad companies in the exercise of a business discretion, and upon consideration of the competition they have to encounter and the necessities of modern business. We do not think a jury may fix the maximum rate of speed at which a train shall be moved in the open country, or that a high rate of speed is negligence per se. But while railroad companies may move their trains at such rate of speed as the character of their machinery and roadbed may make practicable, they must not forget that increased speed for the train means increased danger to those who must cross the tracks, and that increased care on their part to guard against accidents becomes a duty.” In Newhard v. Pennsylvania R. R. Co., 153 Pa. 417, the plaintiff was driving a wagon over a grade crossing in an open country, and was injured by collision with one of the company’s trains. The train was running over the crossing at the rate of fifty miles an hour. It was alleged that this was negligence and that the duty of the company was to slow up at the crossing, but we said : Wherein did the defendant in an3^ particular fail in duty % It gave the signal of its approach to the crossing by the steam whistle ; this was a duty which the law imposed, and it was performed. But, it is argued, it was negligence in defendant to maintain the speed of fifty miles an hour in its approach to the crossing, for if it had £ slowed up ’ the plaintiff could have cleared the crossing before the train reached it. The weakness of this argument is in the implied duty it imposes on the railroad company of conceding the superior right of the traveler to the crossing; undoubtedly, when both are approaching the crossing at a rate of speed which would put them on it at the same time, unless one or the other £ slows up ’ or stops, disaster to one or the other or both follows. If the train had given the proper warning signal to the traveler of its intention immediately for a very short space of time to occupy the crossing, the further duty of £ slowing up ’ or stopping until the traveler has safely passed is not by law imposed upon it; that duty is on the traveler. In passing over a street in a city, town or village, the circumstances being wholly different from a crossing in the country, ordinary care changes the duty, because these street crossings usually are at short intervals ; the view of the traveler from the cross streets is obstructed by lines of buildings close to the track; while the sound of the whistle and the bell can be heard, it is difficult to determine their locality, or tell whether they come from an approaching or receding train. But the evidence here fails to show this crossing, so far as concerns danger, was in any material particular different from other crossings. The view at some points in the approach to it, as may be said of nearly all of them, is obstructed. Invariable human experience, however, as well as the evidence in the case, proves that the steam whistle of this coming train, in the open country, could be heard from a quarter to a half mile from where it was sounded. . . . The question of speed becomes material only when neither sight nor sound can avail the traveler to guard against danger.”

The third, fifth, seventh and eighth assignments are sustained, and the judgment is reversed with a venire facias de novo.


author: Mr. Justice Fell,

text:
    Burt, Appellant, v. Burt.

      Insurance — Life insurance — Policy—■Application—B eneficiaries.

    Where a policy of endowment life insurance is made payable to the insured his executors, administrators or assigns, but in the application under the head of beneficiary it was written “Self if living, if not equally divided among my two nephews and two nieces” naming them, and the insured keeps the policy for twelve years without change and then dies, the proceeds of the policy will be paid to the executor.

      While an application for insurance is made a part of the policy and is to be read with it, its purpose as a part of the policy is to hold the insured to the warranty of the truthfulness of his answers as to his age, state of health, habits, etc., and to prevent any dispute as to the representations on the faith of which the policy had been issued. It confers no right on the beneficiaries named in it.
    Mestrezat, J., dissents.
    Argued March 13, 1907.
    Appeal, No. 75, Jan. T., 1907, by-plaintiff, from judgment of C. P. Monroe Co., Sept. T., 1906, No. 8, on verdict for defendants in case of Ida .Burt, Executrix of the last will and testament of William II. Burt, deceased, v. Margaret Burt, John Burt, Jr., A. R. Brittain, Guardian of William IT. Burt, Jr., and Plora Burt, now intermarried with John Yan Campen.
    Before Pell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Peigned issue to determine ownership of money paid into court. Before Staples, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    [The plaintiff’s points in this case are denied, the court being of the opinion, after a cursory glance at the law and consideration of the evidence, that that policy must be read together, and the application is a part of the same, and there being no evidence to show that there was any request made on the part of the insured to change the declarations made in his application, the court is of the opinion that taking the policy as a w7hole, that the beneficiaries as named in the application are beneficiaries as named under the policy and entitled to receive the money. Being minor children at the time and there being the relationship of brothers and partners between the insured and the father of the children, we think it an insurable interest, and it is not a wagering transaction, and, therefore, upon the issue joined between the plaintiff and the defendants, the court instructs you, gentlemen of the jury, that you should render a verdict in favor of the defendants, Margaret Burt, John Burt, Jr., A. R. Brittain, guardian of William H. Burt, Jr., Plora Burt, now intermarried with John Yan Campen, to the effect that the money paid into court belongs to them, and that they are entitled to receive the same instead of the above-named plaintiff.]
    Yerdict and judgment for defendants. Plaintiff appealed.

      Error assigned amongst others was portion of charge as above, quoting it.

      Henry J. Kotz, for appellant.
    The designation of beneficiaries in the policy supersedes and controls the different one in the application: Hunter v. Scott, 108 N. Car. 213 (12 S. E. Repr. 1027).

      Wilton A. Erdman, with him A. Raiguel Brittain, for appellees.
    There is only one way in which the court could possibly harmonize the provisions of the application and the policy, and that is by holding that the word “ assigns ” used in the policy embraces the beneficiaries named by the insured in his application, upon the theory that the designation of these beneficiaries was an assignment of the policy at its creation : Entwistle v. Ins. Co., 202 Pa. 141; Penna. R. R. Co., v. Wolfe, 203 Pa. 269; Barner v. Lyter, 31 Pa. Superior Ct. 435.
    May 13, 1907:
   Opinion by

Mr. Justice Fell,

This ivas a feigned issue to determine the right to money paid into court by the Mutual Life Insurance Company of New York. The insurance company on November 1, 1893, issued to William H. Burt a “twenty year distribution policy” payable to him, his executors, administrators or assigns. The application for the policy was dated January 17, 1894, but on it there was a memorandum “ Date back to November 1,1893.” The policy was issued after the date of the application and was dated back to give the insured the advantage of a lower premium. In the application under the head of “ beneficiary” was written “ Self if living, if not equally divide among my 2 nephews, 2 nieces, Plora Burt, John Burt, Jr., Maggie Burt, Wm. Burt, Jr., children of John T. Burt.” These words and names were written by the agent who solicited the insurance, forwarded the application, received the policy from the company and delivered it to the insured. The policy and a copy of the application were in the possession of the insured from January, 1894, until his death in December, 1905. The claimants for the fund were the executrix of Wm. IT. Burt, who was the plaintiff, and his nephews and nieces, who were the defendants in the interpleader. A verdict was directed for the latter.

It appeared from, the testimony that this was the second policy issued on the application. The first was not accepted by Mr. Burt for the reason that it was not the kind of policy he wished, but the specific ground of his objection was not shown. It was sent back to the insurance company and the second policy was written to take its place. It also appeared that after the policy had been delivered, Mr. Burt said he was pleased that he had made the insurance as it was, but the reference to the beneficiaries was too indefinite to make the testimony of any value. An inquiry as to his reason for rejecting the first policy or as to his meaning in expressing himself as pleased with the manner in which the insurance had been made would end in conjecture only. The rights of the parties must be determined, as they were determined by the learned trial judge, from the writings in evidence.

The application was made a part of the policy and is to be read with it. But its purpose as a part of the policy was to hold the insured to the warranty of the truthfulness of his answers as to his age, state of health, habits, etc., and to prevent any dispute as to the representations on faith of which the policy had been issued. It conferred no right on the beneficiaries named. The insured might before the policy had been issued and the contract of insurance completed have changed them. There was simply an expression of intention by the insured as to the manner in which a contract not then in existence was to be drawn. This intention he was at liberty to change. The only possible suppositions are that he did change his intention and so notified the insurance company before the policy was issued, or that a mistake was made in writing the policy. If the latter is correct, the presumption is that the insured, who had the policy in his possession twelve years, knew its contents and accepted it as written. In that case it expressed his last intention as to beneficiaries and that expression superseded the former one. In Hunter v. Scott, 108 N. Cal. 213, there was a variance as in this case in naming the beneficiaries in the application and in the policy. Those named in the application were the wife and children of the applicant and those named in the policy the wife and her personal representatives and assigns. It was held that the latter designation prevailed.

The judgment is reversed, and it is directed that judgment be entered on the reserved question for the plaintiff non obstante veredicto.

Mestrezat, J., dissents.


text:
    Best, Appellant, v. Williamsport Staple Company.

      Negligence — ■Master and servant — Dangerous machine — Voluntary exposure to danger — Nonsuit.
    Where a man twenty-three years of age employed for three weeks in a harness factory at a machine for pressing pieces of leather, attempts to clean the rolls while they are in motion, and is injured by doing so, his action in unnecessarily and voluntarily exposing himself to manifest danger, will relieve his employer from all liability for his injuries.
    Argued March 18,1907.
    Appeal, No. 265, Jan. T., 1906, by plaintiff, from order of C. P. Lycoming Co., Sept. T., 1903, No. 386, refusing to take off nonsuit in case of Charles W. E. Best v. Williamsport Staple Company.
    Before Mitchell, O. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Hart, P. J., described the accident as follows :
    The plaintiff was employed by the defendant to operate a machine for the pressing of pieces of leather. The machine was of simple construction, consisting of two metal rolls revolving toward each other in' open view, the motion being-imparted by belt, pulley and cog gearing- operated from a line shaft, a loose pulley being also provided to stop the machine by a shifting belt moved from operating pulley to the loose pulley.
    The machine was also provided with a foot treadle, by which the space between the rolls was so regulated that they could be made to revolve quite close together, or could be separated as much as an inch. At the time of the injuries complained of the foot treadle was fastened to the floor, and the belt was made to shift on to the loose pulley by the use of a stick or a piece of leather or other substance held in the hand of the operator, or by his hand alone being placed against the belt, and in that way the machine put out of gear and the motion of the rollers stopped.
    The leather was fed into the rollers from a horizontal table by the hands of the operator.
    Charles W. E. Best, the plaintiff, had been in the employ of the defendant for some three weeks on this machine; was twenty-three years of age and a person of ordinary intelligence.
    When he began his employment he was instructed by the foreman how to operate the machine, but was not instructed how to clean the rolls. During this employment he frequently stopped the motion of the machine by shifting the belt to the loose pulley, at times, by using his hand, or by using a stick or a piece of leather, as most convenient.
    The plaintiff, on the day of the injuries complained of, was directed by the foreman to clean the rolls so that russet leather might be rolled without soiling. The plaintiff proceeded to clean the rolls from the front by the use of waste without stopping the motion of the machine. The waste caught in the rolls was pulled in between them and with it the right hand of the plaintiff, whereby his hand was crushed and injured. He was released by the foreman, who was near by, stopping the machine.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      II. T. Ames, of Ames & Ilammond, for appellant.

      Olarenee E. Sprout and John E. Oupp, for appellee,
    offered no oral argument.
    May 13, 1907 :
   Per Curiam,

Whether the absence of a guard was negligence in the defendant, or whether it was the proximate cause of the injury, need not be discussed. The plaintiff’s action in attempting to clean the rolls while they were in motion was an unnecessary and voluntary exposure to manifest danger, for the consequences of which his own negligence is alone responsible.

Judgment is affirmed.


text:
    Orange Home v. Montgomery County, Appellant.

      Road law — Viewers—Trial—Presentation of whole case before viewers —Damages.

    In a proceeding to assess damages for opening a public road, the landowner, in the trial in court, is not confined to the elements of damage claimed before the jury of view.
    Argued March 19, 1907.
    Appeal, No. 213, Jan. T., 1906, by defendant, from judgment of C. P. Montgomery Co., June Term, 1904, No. 47, on verdict for plaintiff in case of Orange Home v. Montgomery County.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Weand, J.
    At the .trial the defendant presented the following points:
    1. The court is requested to charge the jury that if at the time that the jury who were appointed by the court of quarter sessions to view and lay out a proposed road met for the purposes of their appointment, that the representatives of the plaintiff stated that a lake was proposed to be constructed at the Ritchie line and that when the road was eventually laid out was under consideration by the same jury, that no allegation was made of an intention to construct a lake where said proposed new road intersected with the Byberry road, that the jury cannot award any damages to the plaintiff by reason thereof the plaintiff being estopped from now claiming damages for an alleged injury then withheld from and not presented for the consideration of the jury of view.
    2. The court is requested to charge the jury that if when the jury appointed by the court of quarter sessions to lay out a proposed road were considering the propriety of laying out said road on the line of the private right of way, and representatives of the plaintiff then stated that it was their intention to construct a building on the line of said right of way and no statément was made of a purpose in contemplation of the construction of any building where the new road crosses the summit of the ridge, that the plaintiff is stopped from asking for damages by reason thereof, plaintiff being estopped from now asking for damages for injuries then not presented.
    3. The court is requested to charge the jury that if the jury believe that the alleged purposes of the plaintiff in the development of their property were conceived subsequent to the laying out of the road by the jury of view that plaintiff is not entitled to recover damages for the items mainly relied upon, to wit: The taking of the building site where the new road crosses the summit of the ridge and the site of the proposed lake where the new road intersects with the Byberry road.
    The court refused all three of the points. [1 — 3]
    Verdict for plaintiff for $6,000.
    On motion in arrest of the judgment Weand, J., filed the following opinion:
    Under regular proceeding in the court of quarter sessions a public road was laid out through the property of plaintiff who then appealed from the assessment of damages. The case tried in the common pleas was to ascertain the damages, if any, to which plaintiff was entitled, and the proceeding was de novo.
    In the issue tried the question was, how has plaintiff’s land been injured and what is the damage ? The damage is the difference in the market value before and after the taking as affecting the market value ; and “ in estimating the market value of land everything which gives it intrinsic value is to be taken into considerationShenango and Allegheny R. R. Co. v. Braham, 79 Pa. 447.
    The contention of the defendant is, that on the trial in court the plaintiff is confined to the elements of damage claimed before the jury of view. . The reasoning is fallacious. Defendant was not obliged to present his whole case to the viewers' — he may not have then known how it would affect the land; and it is not al'one his estimate which controls, but also that of his witnesses.
    The point to be elucidated by testimony is, “ how has the market value been affected ? ” And for this purpose the law allows the testimony of persons acquainted with market values.
    The owner may only consider or think of his personal disadvantages and yet the market value be affected in various ways. As it was impossible for the owner to tell which route was to be adopted he could not be prepared to meet every contingency at the view.
    If the defendant’s contention is correct then the same rule would apply to the county and compel the commissioners to present their whole case to the viewers.
    The suggestion that if the viewers knew the extent of damage claimed they might refuse the road, has some weight, but cannot control, as they are not the final arbiters. They must be presumed to know that the claim, whether great or small, is the subject of review by another tribunal; and they ought not, except in an extreme case, undertake to be the final judges. Their duty is to lay out the road so as to do the least damage to the owner, and assess damages accordingly, and if they are wrong in their estimate, an appeal is the method of correcting their error. The county commissioners have not objected to the confirmation of the report so far as it lays out the road. If their present contention is correct, then every road case would result in a trial on the merits before the jury of view uncontrolled by any tribunal to control its regularity. We should avoid such a result.
    And now, May 17, 1906, the motion in arrest of judgment and for a new trial is overruled and judgment will be entered on the verdict on payment of the verdict fee.

      Errors assigned were (1-3) above instructions, quoting them.

      J. P. Hale Jenkins, for appellant.

      G. P. Fox, M. M. Gibson and H. H. JLarzelere, for appellee,
    were not heard.
    May 13, 1907:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Egbert, Appellant, v. de Solms.

      Trusts and trustees — Voluntary settlement — Spendthrift trust — Children —Remainder-men—Attachment execution. •
    A man and wife executed a deed of trust to a trustee to pay over the income to the wife for life, and after her decease to pay over the income to the husband for his life, not to be liable for his debts, and after his death to pay over the principal to the children of the settlors in such shares as the husband by his last will should appoint, and in default of appointment to the children in equal shares. The wife died before the husband. Held, (1) that the income payable to the husband was assets for the payment of his debts; (2) that except as to creditors existing at the time of the settlement,, or those in specific contemplation in the immediate future, the principal of the estate was free from attack by creditors.
    In the above case the trustee was garnisheed by creditors of the husband. It answered that the income which it had collected and was at present holding, had been assigned by instrument in writing to a creditor other than the attachment creditor before the service of the attachment, but that the defendant cestui que trust had revoked the assignment. Held, that there was no admission of assets in the trustee’s hands liable to attachment.
    Argued March 25, 1907.
    Appeal, No. 400, Jan. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1906, No. 2,387 discharging rule for judgment on answers in case of Eugene D. Egbert, Trustee, v. Sidney J. B. de Solms, defendant, and the Philadelphia Trust, Safe Deposit & Insurance Co., Garnishee.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ'.
    Affirmed.
    Rule for judgment on answers to interrogatories.
    From the record it appeared that on September 15, 1883, Sidney J. J. de Solms and Elsie R. de Solms, his wife, executed to the Philadelphia Trust, Safe Deposit & Insurance Company, a deed of trust of properties belonging to each of them. The trust was in the following form:
    To let or demise, or sell and convey, any and all of the real estate; to take, receive and hold any and all moneys, securities,. stocks or other personal property which are or may be also included in the said property or estates, to sell any stocks, bonds, mortgages or other securities of any kind which they, said party of the second part, may at any time bold or possess upon the trust of this indenture; to réinvest the proceeds of any such sale or sales and to pay over the income, interest or rents which may or shall arise from all the said herein granted property or estates, to the said Elsie R. Solms, during her natural life, upon her individual' acknowledgment, for the benefit and support of herself and family without any liability to account to any person for the disposition thereof. And from and immediately after the death of the said Elsie R. Solms, to assign, convey, transfer or pay over the corpus or principal of the estate which shall at such time be held in trust under the provisions of this indenture : so far as the same was derived in the right of the said Elsie R. Solms as hereinbefore stated to and among the children and the issue of any deceased children of the said Elsie R. Solms in such shares or portions as she may by her last will and testament name and appoint; they to take in equal shares in case she shall make no such appointment; and such issue of any deceased child to take by representation and not per capita. And upon the further trust that so far as the property held in trust under the provisions of this indenture at the time of the death of said Elsie R. Solms, was derived by the said party of the second part in the right of the said Sidney J. B. Solms as hereinbefore stated, to pay over the net income which shall arise from the same, after her death, during the further life of the said Sidney J. B. Solms (if he shall survive her) to him or at the discretion of the said party of the second part, to apply the same for his maintenance and support in such way and manner that the same shall not be liable for his debts or' contracts; and upon his death occurring after her death, or upon her death occurring after his, to assign, convey, transfer or pay over the corpus or principal of the estate so as aforesaid derived in the right of the said Sidney J. B. Solms, to and among the children as the issue of deceased children of the said parties of the first part, in such shares or portions as he, the said Sidney J. B. Solms, may by his last will appoint, they to take in equal shares in case he shall make no appointment; such issue taking by representation and not per capita.
    The garnishee, the Philadelphia Trust, Safe Deposit & Insurance Company, filed answers to interrogatories setting up the deed of trust and the assignment of income set forth in the opinion of the Supreme Court.
    The court discharged the rule for judgment on answers.

      Error assigned was the order of the court.

      Linwood L. Hallman, with him E. L. Hallman, for appellant.

      J. B. Townsend, of Townsend, Elliott <& Townsend, for appellee.
    May 13, 1907 :
   Per Curiam,

Except as against existing creditors, or those in specific contemplation in the immediate future, the defendant and his wife, the settlors in the deed of trust, could have conveyed a present absolute estate to their children, and a fortiori they could convey an estate in remainder. This is what they did, and the remainder vested in the children at once : Solms v. Phila. Trust Co., 16 W. N. C. 80. The power of appointment by the settlors in regard to the respective shares in which the children should take did not in any way diminish the estate of the remainder-men, or reserve to the settlors any interest which would invalidate the trust in favor of ■ their creditors.

The income, however, reserved to the settlor during his life, no matter how carefully guarded for his own use, was assets for payment of his debts : Mackason’s Appeal, 42 Pa. 330. '

It appears, however, by the answers of the garnishee that the income which it has collected and now holds was assigned by instrument in writing to another creditor before the service of. the present attachment, but that the defendant cestui que trust had revoked the assignment. In this position of affairs there was no admission of assets in its hands liable to attachment, and the rule was properly discharged.

Judgment affirmed.


text:
    Randall v. Dunlap, Appellant.

      Will — Provision for unborn child — Act of April 8, 1833, sec. 15, P. L. 249.
    All that the Act of April 8, 1833, sec. 15, P. L. 249, requires relative to the provision for an unborn child, is that the testator shall have the child in mind and shall make clear his intention that the will shall apply to it. Any provision which does that is sufficient, and the inquiry whether large or small, equal or unequal, vested or contingent, present or future, is irrelevant and outside the jurisdiction of the courts except so far as it tends to throw light on the question of intention.
    Testatrix after having made provision for her children in the last clause of her will declared as follows: “I declare this to be and contain my last will and testament, and that after-born children are herein provided for.” Held, that the provision for after-born children was sufficient.
    Argued March 26,1907.
    Appeal, No. 120, Jan. T., 1907, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 2,435, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel J. Randall in his own right as Executor and Trustee under the last will and testament of Ethel Allen Randall, deceased, v. William Dunlap.
    Before Mitchell, O. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for purchase money of real estate.
    From the record it appeared that the defendant objected to take a deed on the ground that Mrs. Ethel Randall had not made provision for an after-born child.
    The plaintiff relied upon the last clause of Mrs. Allen’s will which was as follows :
    “ Lastly : I declare this to be and contain my last will and testament, and that after-born children are herein provided for.”
    In another clause, which is part of the first item of her will, the testatrix provided as follows :
    “ If my husband shall not survive me, I direct that the said two-thirds of the principal of my estate (which had been previously devised to him absolutely) shall be divided in equal shares absolutely amongst my children surviving me, the issue of deceased children, however, representing their parent’s share only.”
    The act of April 8, 1833, sec. 15, is as follows :
    “ When any person shall make his last will and testament, and afterwards shall marry or have a child or children not provided for in such will, and die leaving a widow and child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child, or children after born, shall be deemed and construed to die intestate ; and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased as if he had actually died without any will.”
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Walter E. Rex, for appellant.
    There was no sufficient provision for an unborn child : Walker v. Hall, 34 Pa. 483; Coates v. Hughes, 3 Binney, 498; Hollingsworth’s App., 51 Pa. 518; Willard’s Estate, 68 Pa. 327.

      F. 8. Mcllhenny and Horace Ha/oerstick, for appellee,
    were not heard.
    May 13, 1907 :
   Per Curiam,

This case is ruled by Newlin’s Estate, 209 Pa. 456. It was there distinctly and definitely decided that the only requirement of the Act of April 8, 1833, P. L. 249, in this respect is that the testator shall make such provision as he deems proper for the unborn child, and shall do it in such way as to show that he intended it for a provision. All that the statute requires is that the testator shall have the child in mind and shall make clear his intention that the will shall apply to it. Any provision which does that is sufficient, and the inquiry whether large or small, equal'or unequal, vested or contingent, present or future, is irrelevant and outside the jurisdiction of the courts except so far as it tends to throw light on the question of intention.”

In the present case the testatrix prevented all doubt as to her intention by the express declaration in her will that “ after-born children are herein provided for.”

Judgment affirmed.


text:
    Lovering v. Miller, Appellant.

      Contract — Theatrical contract — “Regular season” — Evidence—Parol evidence.

    Where a theatrical contract in writing provides for an engagement for the “regular season” but the contract does not disclose what is intended by the words “regular season,” parol evidence is admissible to show the. common understanding in the theatrical business what that term includes, and the writing with this evidence must go to the jury to find the exact terms of the contract.-
    Argued March 27, 1907.
    Appeal, No. 395, Jan. T., 1906,-by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1903, No. 2,250, on verdict for plaintiff in case of Daisy Lovering v. William W. Miller and Israel Kaufman, trading as Miller & Kaufman.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a contract of employment. Before Wilt-bank, J.
    At the trial it appeared that the contract in question was as follows:

      “ Miller & Kaufman, Managers hereby engages Daisy Lovering, actor to play — ‘ Chuff ’ in £ His Sister’s Shame ’ for
    weeks season 1903-1. Beginning on or about September 1, 1903, at a weekly salary of $75.00 and the said manager shall pay all expenses of transportation of the person and baggage of the said actor during travel.
    “ A supplementary season of three weeks or more opening on or about June 15, at Atlantic City. During supplementary season said Daisy Lovering to receive a salary of $50 per week.

      “ It is further agreed that during regular season commencing on or about September 1, said Miller & Kaufman, managers, are to feature said Daisy Lovering on all papers, dodgers, programmes and furnish all lithographs of said Daisy Lovering.
    “ In witness whereof we have hereunto set our hands this 21st day of May, 1903.
    “ Miller & Kaufman.
    “ Daisy Lovering.”
    Yerdict and judgment for plaintiff for $2,651.35. Defendant appealed.

      Error assigned was in admitting the parol evidence referred to in the opinion of the Supreme Court, to show what was meant by the words “ regular season ” in the contract.

      Emanuel Fwrth, with him David Fortin, Jerome J. Rothschild and Jacob Singer, for appellants.

      Edward B. West, for appellee.
    May 13, 1907:
   Per Curiam,

By the contract in evidence appellants engaged the plaintiff to play a certain part “ for (blank) weeks season 1903-1, beginning on or about September 1,1903. . . . A supplementary season of three weeks or more opening on or about June 15, at Atlantic City .... during regular season commencing on or about September 1, said Miller & Kaufman, Managers, are to feature said Lovering on all papers,” etc. The contract is plainly for a “ regular season ” beginning on or about September 1, the salary is fixed at $75.00 a week, and it is provided that in what is expressly called the “regular season” commencing on or about September 1, the appellants were to “feature” the plaintiff in the papers, programmes, etc. That a regular season was meant is further implied from the clause as to a “supplementary season” opening in June at a lesser salary.

The number of weeks comprised in a regular season was, however, left undefined in the writing, and evidence was, therefore, properly admitted to show the common understanding in the theatrical business what that term included, and the writing with this evidence necessarily went to the jury to find the exact terms of the contract.

In view of the dispute between the parties as to which was in fault for breach of the contract, it is not clear that the conversations before the writing was signed, testified to by plaintiff, particularly as to her requirement that she should first read the play, and as to the version of it that she agreed to perform, did not bear directly on the considerations inducing her to make the contract. But even if this were conceded to be doubtful it does not appear that the evidence had any prejudicial effect on the real contest in the case over the question whether appellants contracted for a definite period or, as they claimed, only for an employment at will, “so long as satisfactory.”

Judgment affirmed.


text:
    Crothers v. Philadelphia Electric Company, Appellant.

      Negligence — Master and servant — Charge.
    In an action by an employee against his employer to recover damages for personal injuries, where the evidence on behalf of the plaintiff shows clear negligence on the part of the defendant, but such evidence is flatly contradicted, it is reversible error for the court to affirm without qualification a point to the effect that the failure of the defendant to render the plaintiff proper protection, rendered the defendant liable for the injuries suffered by plaintiff, and that the verdict should be for the plaintiff.
    Argued March 29, 1907.
    Appeal, No. 102, Jan. T., 1907, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 2,834, on verdict for plaintiff in case of William T. Crothers v. Philadelphia Electric Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Biddle, P. J.

      The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Error assigned among others was in affirming plaintiff’s fourth point, quoted in the opinion of the Supreme Court.

      R. Stuart Smith, with him Charles E. Morgan, for appellant.

      William, H. Wilson, with him Joseph P. Rogers and Francis M. McAdams, for appellee.
    May 13, 1907:
   Opinion by

Mr. Justice Fell,

It appeared from the plaintiff’s testimony that he had been employed by the defendant as a cable splicer or electric plumber. He was taken from this work, which was done mainly in underground conduits, and directed to assist in the removal of an iron pole which had rusted near the base and become unfit for use. This was work with which he was not familiar. The pole had been inspected and condemned as unsafe, but of this fact he had no knowledge; the defects were not apparent nor discernible except by inspection ; he supposed the pole was safe as it appeared to be, and from information received from the foreman believed that it was to be replaced by one of a different kind. While he was at the top of the pole, assisting in the removal of a mast-arm, the pole broke a few inches from the ground because it was too weak to sustain the extra iveight.

This testimony, although flatly contradicted, made out a case that entitled the plaintiff to go to the jury, since it tended to show that there was a special risk in the work which was not patent, and was not known to him but was known to bis employer. Of this he should have been warned. The error at the trial which calls for a reversal of the judgment was in the answer to the plaintiff’s fourth point: “ If you find that the work in which the said plaintiff was engaged at the time of the accident was not the usual and customary work which he had been engaged by the defendant company to. perform, and that the plaintiff was inexperienced in that line of work, then the defendant company owed to the plaintiff a higher degree of care, and should have used every reasonable means for protecting him from injury, and their failure so to do renders them liable for the injuries suffered by the said plaintiff, and your verdict should be for the plaintiff.” The affirmance of this point withdrew from the consideration of the jury the testimony of the defense, which, if believed, would have prevented a recovery. The last clause of the sentence, “ and their failure so to do renders them liable for the injuries suffered by the said plaintiff, and your verdict must be for the plaintiff,” is a declaration that the defendant had failed in the performance of its duties, and the affirmance was in effect a peremptory instruction to find for the plaintiff.

The first assignment of error is sustained, and the judgment is reversed with a venire facias de novo.