text:
    Daltry v. Media Electric Light, Heat and Power Company, Appellant.

      Negligence — Electric light company — Degree of care.

    A corporation which uses electricity of high voltage for lighting purposes is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid an injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them.
    An electric light company is responsible for an injury where it negligently permits its wire to come in contact with the wire of another, which transmits the current, and thereby causes an accident.
    In an action against an electric light company to recover damages for injuries to a boy ten years old, it appeared that the boy was injured by coming in contact with the end of a broken wire while at play. The evidence showed that the accident occurred on a lawn to’.which there was access from a public street by a driveway, and that the only obstruction to the entrance of the driveway was a chain hanging between posts. It was customary for the boys of the neighborhood about the time of the accident, and when the house on the property was not occupied, to play on the lawn, and at times the owner permitted the boys to enter to get apples. The fact that boys played on the lawn was known to the defendant. Sometime prior to the accident a tenant of the property at his own expense had the defendant introduce electric light into the house by running a wire from its line at the gateway across the lawn to the building. When the tenant removed from the house the company cut off the electric connection by talcing out the fuses at the transformer beneath the eaves of the house. The wire continued in connection with the feeder line at the street. At the time of the accident it hung a few feet from the driveway, and not far from the entrance. It extended to a point within twelve or eighteen inches of the ground, and was of sufficient length to swing to the driveway. The boy while at play came in contact with the end of the wire. Held, (1) that the company was not relieved from liability to the boy by reason of the fact that it was not the owner of the wire; (2) that the company was not relieved from liability on the theory that the boy was a trespasser on the lawn at the time of the accident; (3) that the use of the wire by the company was sufficient to warrant an averment in the statement of claim that “it negligently conducted its said business and operated and controlled its wires;” (4) that a verdict and judgment for plaintiff should be sustained.
    Argued Feb. 9, 1904.
    Appeal, No. 225, Jan. T., 1903, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1901, No. 106, on verdict for plaintiff in case of James W. Daltry by his next friend John L. Daltry ahd John L. Daltry v. Media Electric Light, Heat & Power Company.
    Before Mitchell, C. J., Dean, Fell, Mesthezat and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented these points:
    7. If James Daltry in the exercise of that discretion which is reasonably expected from a boy of his age, size, maturity and capacity should have known that if he came in contact with this wire, he would be hurt, then he cannot recover and the verdict must be for the defendant. Answer: In answer to this point we say if you find the boy had sufficient intelligence, capacity and understanding to know that if he came in contact with the wire, he would be hurt, and did purposely, carelessly or negligently touch it, this point is affirmed. [13]
    8. If James Daltry played with this wire when an ordinarily careful and prudent boy of the same age, capacity and intelligence would have stayed away from it, then there can be no recovery in either case. Answer: This point is affirmed, if you shall find that James had sufficient intelligence, capacity and understanding to know he would be hurt if he touched the wire. [14]
    10. If James Daltry was trespassing on the private property of George E. Darlington, Esq., at the time he received the electric shock, which caused his injury, he was at a place where he had no right to be, and at a place where the defendant owed him no duty and cannot recover and the verdict in each case must be for the defendant. Answer: We say if you find that James was a trespasser and was where lie had no right to be and at a place where the defendant owed him no duty, then this point is affirmed. [15]
    11. If James Daltry was injured while playing on the lawn of George E. Darlington, Esq., he was a trespasser there; the defendant owed him no duty and the verdict in each case must be for the defendant. Answer: That is refused. [16]
    12. Under all the circumstances of the case, the defendant owed the plaintiff no duty which was violated, hence there is no legal liability, and the verdict must be for the defendant. Answer: This is refused. [17]
    18. The defendant could not refuse to furnish current to the property of George. E. Darlington, Esq., and could not refuse to permit Walter D. Griscom, a consumer, to connect his private wires to- the main line of the defendant for the purpose of getting current to light said property; but the defendant is' not liable for an injury happening from those private wires of the consumer. Answer: That is refused. [18]
    14. If the, wire from which James Daltry received an electric shock did not, at the time of the injury, belong to the defendant, then the defendant is under no obligation to keep it in repair, and is not liable to the’ plaintiffs, and the verdict must be for the defendant in both cases. Answer: This is refused. [19]
    15. If the wire from which James Daltry received an electric shock was furnished, bought, put up, erected and paid for by Walter D. Griscom, a tenant on the property of George E. Darlington, then the defendant is under no obligation to keep it in repair and is not liable to the plaintiffs for the injury complained of and the verdict in each case must be for the defendant. Answer: That is refused. [20]

      Verdict and judgment for James W. Daltry for $5,500 and for John L. Daltry for $400. Defendant appealed.

      Errors assigned among others were (13-20) above instructions, quoting them.

      W. Roger Eronefield, for appellant.
    An electric lighting company does not owe a duty to a trespasser on the private property of a consumer of its current to inspect and keep repaired the private wiring of the consumer: Gramlich v. Wurst, 86 Pa. 74; Gaughan v. Philadelphia, 119 Pa. 503; Herr v. Lebanon, 149 Pa. 222; Elliott v. Allegheny County Light Company, 204 Pa. 568.
    It is conceded that the boy was a trespasser, in which case, to permit of recovery, wanton or intentional injury must be proven : Brown on Negligence in Penna. 1708; 13 Pepper & Lewis Digest of Decisions, 21,621; Knight v. Abert, 6 Pa. 472; Gillis v. Penna. Railroad Co., 59 Pa. 129; Gramlich v. Wurst, 86 Pa. 74; Duff v. Allegheny Valley R. R. Co., 91 Pa. 458; Gillespie v. McGowan, 100 Pa. 144; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Rodgers v. Lees, 140 Pa. 475; Brague v. Northern Cent. Ry. Co., 192 Pa. 242; Mulherrin v. Delaware, etc., Railroad Co., 81 Pa. 366; Westerberg v. Kinzua Creek R. R. Co., 142 Pa. 471.
    A trespasser cannot recover even though the danger was not apparent to him : Gillis v. Penna. R. R. Co., 59 Pa. 129; Feehan v. Dobson, 10 Pa. Superior Ct. 6; Gramlich v. Wurst, 86 Pa. 74.
    Even though the plaintiff had not been technically a trespasser, still he was at a place where he had no right to be and where the defendant owed him no duty: Gillis v. Penna. R. R. Co., 59 Pa. 129; Duff v. Allegheny Valley R. R. Co., 91 Pa. 458; Gillespie v. McGowan, 100 Pa. 144.
    . Allegations and proofs should agree. The burden is on the plaintiff to prove his case of negligence against the defendant as he alleges it, and “that the defendant caused a wire owned and operated by the defendant to strike the plaintiff: ” Gilberton Borough v. Schuylkill Traction Co., 22 Pa. Superior Ct. 279; Lee v. Conard, 1 Whart. 155.
    The court, both in the general charge and in the answer to the defendant’s points made the plaintiff’s knowledge the test of his responsibility. In this, we submit, the learned judge erred: City Pass. Ry. v. Hassard, 75 Pa. 367; Penna. R. R. Co. v. Kelly, 31 Pa. 372; Rauch v. Lloyd, 31 Pa. 358; Penna. R. R. Co. v. Lewis, 79 Pa. 33; Crissey v. Hestonville, etc., Ry. Co., 75 Pa. 83; Smith v. O’Connor, 48 Pa. 218; Oakland Ry. Co. v. Fielding, 48 Pa. 320; Sandford v. Hestonville, etc., R. R. Co., 136 Pa. 84; Moore v. Penna. R. R. Co., 99 Pa. 301; Kehler v. Schwenk, 144 Pa. 348.
    117 B. lh-oomall, with him John IS. McDonough, for appellee.
    —The question of trespassers had nothing to do with the case. We could not affect the defendant company, by proving that they were transmitting their current over the owner’s property as a matter of technical trespass, nor does it stand the defendant in hand to affect the boy, by proving that so far as the owner of the property was concerned, he was a technical trespasser : Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.
    March 14, 1904:
   Opinion by

Mr. Justice Mestbezat,

George E. Darlington, Esq., is the owner of a lot or piece of ground fronting about 100 yards on Providence avenue, in the borough of Media, Delaware county. In the center of the lot, about 150 feet from the street, stands a large dwelling used as a country house, and in the rear of it is a stable. A hedge fence separates the land from the street. Midway of this fence a driveway enters the premises, leading to the house and thence to the stable. On either side of the driveway, at the entrance to the property, is a stone gate post, and a chain hanging between the posts is the only obstruction to entering through the gateway. There is a lawn in front of the dwelling house on which the children of the neighborhood occasionally play, and when Mr. Darlington occupied the house he permitted them to enter the premises occasionally to get apples. At the time of the accident the premises were vacant.

The defendant company furnishes light, heat and power to consumers in the borough of Media. Its light wires extend along Providence avenue in front of the Darlington premises. This property was leased to W. D. Griscom who, in March, 1898, had the defendant company introduce electric light into the house by running a wire from its line at the gateway across the lawn to the building. This was done at the tenant’s expense. Griscom removed from and vacated the premises, and just prior to doing so he directed the defendant company to cut the current so it would not pass through the bouse. This was done by taking out the fuses at the transformer which rested against the side, and just beneath the eaves, of the house. The electric current was thus prevented from entering the house but not from passing through the wire extending from the house to the defendant’s feed line at the street. After the current had been cut out, the wire broke between the house and a tree on the lawn through which it passed and was tied to the branches of the tree. The broken end of the wire fell frequently and “ was tied up in the tree out of reach, four or five times before this injury.” At the time of the accident it hung from the tree fourteen feet from the hedge fence and six feet from the carriageway. It extended to a point within twelve or eighteen inches of the ground and was of sufficient length to swing to the driveway.

In the immediate vicinity of the Darlington property, the plaintiff, a boy of ten years of age, and a number of other children of like age resided in 1901. They were accustomed to play in the street near the gateway after school hours. The plaintiff with another boy, a few years his senior, were thus engaged in the street in front of the Darlington premises in the afternoon of April 9,1901. They separated to go to their homes for supper and agreed to meet later “ down atthe Darling-ton gate to play hide and seek or hunt the hare.” A half hour later the two boys with several other boys of their age assembled inside the gate where the broken wire was suspended and engaged in “ skinning the'cat and playing around.” The plaintiff came in contact with the wire and was severely injured. Paul Matheus, one of the boys, after testifying that they had been playing with the wire and that it “ was bare at the end,” thus describes the manner in which the accident occurred: “ Q. What happened when James (plaintiff) came? A. I threw the stick and when the stick lit on the wire it kind of moved over toward me and then back again, and it flew off and he went to grab the stick and grabbed the bare wire. He got hold of the wire and fell down.” The brother of this witness gives the same account of the accident. He testifies : “ Q. Tell us as well as you recollect tvhat happened after Jimmy (plaintiff) got in there. When you first saw him when he got in there, what happened. A. Paul threw a stick and he grabbed hold of the stick. The stick swung after it had hit the wire and caught in the wire somehow, and he went to grah for the stick and grabbed the wire and he groaned a little and fell right back.”

This action was brought to recover damages for the injuries sustained by the plaintiff alleged to have been caused by the negligence of the defendant company. The case was submitted to the jury and a verdict was rendered in favor of the plaintiff. The learned trial judge refused to grant a new trial for the reasons set forth in his opinion and, judgment having been entered on the verdict, the defendant has appealed.

Electricity when of sufficient voltage for lighting purposes is well known by electricians and others familiar with its properties to be most dangerous and likely to cause death to those who come in contact with its current. Those who deal with it or supply it to the public are therefore required to recognize this fact and to exereise care commensurate with the danger. A party responsible for an injury by reason of a failure to observe such care is guilty of negligence. As said in Fitzgerald v. Edison Electric Company, 200 Pa. 540: “ The company, however, which uses such a dangerous agent is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidently or otherwise in contact with them. The defendant, in accord with the common practice of electric companies, recognized this obligation by insulating its dangerous wire.”

The defendant seeks to .relieve itself from liability for the injuries sustained by the plaintiff substantially on the ground that the company was not the owner of the wire which occasioned the injuries and because the plaintiff was a trespasser at the time of the accident and therefore it owed him no duty requiring the observance of care to guard his safety. We are of opinion, however, that under the facts of this case neither of these defenses can avail the defendant company.

While the expense of constructing the electric light line from the defendant’s wire to the house was paid by the tenant of the premises, the work was done by the defendant company which also cut off the current from the house before the accident. It used the line to carry its current to the house until the connection was severed, and during this time it had full control of the wire and, as it were, operated it in furnishing electricity for the building occupied by the tenant. After the defendant company had removed the fuses from the wire at the house, it, nevertheless, continued to send its electric current through the wire whenever its dynamo was in operation, although the current was not utilized for lighting purposes.' The wire carried the same deadly element or agent across the lawn after, as it did before, the current was disconnected at the house, and a like responsibility rested with the defendant company to exercise care in protecting those who might come in contact with it by accident or otherwise, and through no fault of their own. The company could have severed the wire and the current at its own feed wire at the street, and thereby have removed all danger to persons who might possibly come in contact with it on the Darlington premises. No sufficient reason is assigned why the defendant did not take this reasonable precaution to avoid a patent danger as well as to relieve itself from responsibility for a wire, the ownership and control of which it disclaimed.

That the company did not construct the line at its own expense cannot relieve it from the duty to exercise care in keeping it in proper condition and repair during the period the wire carried its electric current. The ownership of the wire cannot affect the company’s liability for failure to observe this duty under the facts disclosed by the evidence in this case. When charged with its electricity the wire was in the possession and control of the company so far as concerned its duty to keep it in repair and in proper condition and position to protect those who might come in contact with it. The danger lay not in the wire, but in the “ subtle fluid ” sent through it by the defendant company. It was not the wire that injured the boy, but the electric current which it bore from the defendant’s djmamo. The use of the wire by the defendant, and not the wire itself, caused the injury to the child. Hence, it logically follows that, not withstanding the ownership of the wire may have been in another, the defendant company must be considered as in possession of, and as using, it at the time of the accident and, therefore, responsible for any injury resulting from the failure to inspect and keep it in proper condition and repair when charged with the company’s electricity.

That the ownership of the wire is not controlling as to the liability for an injury caused by coming in contact with it is determined by the principle announced in that class of cases in which it is held that an electric railway company or an electric light company is responsible for an injury where it negligently permits its wire to come in contact with another company’s telephone or telegraph wire which transmits the current and thereby causes an accident. This is a sound rule and is recognized in many jurisdictions: Block v. Milwaukee Street Railway Co. (Wis.), 27 L. R. A. 365; City Electric Street Railway Company v. Conery (Ark.), 31 L. R. A. 570; Western Union Telegraph Co. v. Nelson (Md.), 31 L. R. A. 572; United Electric Ry. Co. v. Shelton, 89 Tenn. 423. These cases hold it to be the duty of electric companies to use care not only to keep their own wires in proper condition and repair, but also to prevent their coming in contact with other wires which, by becoming charged with and transmitting the electric current, may cause an injury. When an injury results under such circumstances the electric company is responsible by reason of the negligent control of its wires regardless of the ownership of the wire that transmits the current to the person who is injured. In the case at bar, the electric current was not transmitted by the company’s wire coming in contact with another wire which caused the plaintiff’s injury, but it was carried on a wire connected by the company with its own feed wire for the very purpose of transmitting the current which by reason of the noninsulation of the wire injured the boy. With much greater reason, therefore, should the defendant company in this case, under like circumstances, he held liable for the transmission of its current through another’s wire, than where the electric company’s current is communicated to the wire by negligent contact. •

The defendant company also denies its liability because, as it alleges, the plaintiff was a trespasser at the time of the accident and it owed him no duty which it had violated. But this position is clearly untenable. If it be conceded that the boy was technically a trespasser as against Mr. Darlington who owned, and was in possession of, the premises, he was not a trespasser as against the defendant company who had neither the possession, nor the right of possession, of the property. It may be admitted that the company entered the premises by permission, but it was for the specific and single purpose of furnishing light to the then tenant of the property. When he directed the cutting out of the current and the discontinuance of the light in his house, the purpose of the entry had been accomplished and the right of the' company to be upon the property had ceased. It is not claimed that the company was on the premises or was using the wire with permission of Mr. Darlington at the time of the accident. If, therefore, it was occupying the property for any purpose whatever, it was itself a trespasser. It stood on no higher ground than the plaintiff, whose presence on the lawn was violating no right of possession which the company had to the premises. Conceding that the owner of the property owed no duty of care to either, the parties themselves, however, occupied the same relative position towards him, but an entirely different position towards each other which required that each should exercise towards the other the care demanded by the circumstances.

Assuming then, as we must assume, that the defendant company was in possession of, and using, the wire for the purpose of transmitting its electric current, and that as against it the boy was not a trespasser, its duty to the children at the place and time of the accident was to exercise such care over the wire as was demanded by. the great danger to which they were exposed. Having constructed the line across the lawn to the house in proximity to the carriageway, it knew that children as well as adults might frequent the way and, hence, the necessity for keeping its wires in proper condition and repair to avoid danger. It must be presumed that the company also knew what the evidence disclosed as a fact that children used the lawn of the premises near the gateway and in the vicinity of the wire as well as the street in front of the premises as a playground. Such conditions existed for a sufficient length of time to warrant the inference of notice to the company. The accident occurred very near the gateway — but two steps from the driveway and only about fourteen feet from the fence. So far as pedestrians were concerned, there was practically no obstruction to entering the driveway which was the approach to the house. It was, therefore, the duty of the company in transmitting its current on the premises to take reasonable precautions to prevent injury to persons who might be at this point. Whether it observed this duty or not was clearly for the jury.

Under all the facts of the case, we are of opinion that it was the duty of the defendant company to properly inspect and keep in repair the electric wire that carried its current across Mr. Darlington’s premises, and that for an injury resulting from a failure to perform this duty, the company is legally responsible.

We are not convinced that the assignments raising the other questions in the case are of sufficient merit to warrant reversal. Some of those questions are considered and properly disposed of in the opinion of the learned trial judge in overruling the motion for a new trial. The use of the wire by the company for the transmission of its current was sufficient to warrant the averment in the statement that “ it negligently conducted its said business and operated and controlled its wires.” Several months prior to the accident, the tenant had removed from the premises, leaving the wire suspended between the street and the house as the company had constructed it. So far as the evidence disclosed, he had at no time exercised any acts of ownership over it. From the time of the construction of the line till the accident, the defendant company was the only party that made any use of the wire. It may, therefore, as laid in the statement, fairly be regarded as the company’s wire.

There was some evidence of the diminished earning power of the boy and it had to go to the jury on the question of damages. We also think that the jury would understand from all the language used by the trial judge on the subject in the charge and in answer to points, that the test of the boy’s responsibility for negligence was the discretion usually exercised by children of his age, maturity and capacity. If he exercised such discretion he is not chargeable with negligence. There is some ground for the allegation of inadequacy of the charge as recognized by the trial judge himself, but as a whole, we are not prepared to say that the charge did not give the jury instructions sufficient to enable it to apply the correct rule in ascertaining the damages and in determining the negligence of the defendant.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestbezat,

license: Public Domain

text:
    Daltry v. Media Electric Light, Heat & Power Company, Appellant.
    Argued Feb. 9, 1904.
    Appeal, No. 226, Jan. T., 1908, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1901, No. 106, on verdict for plaintiff in case of John L. Daltry v. Media Electric Light, Heat & Power Company.
    Before Mitchell, C. J., Dean, Fell, Mestbezat and Thompson, JJ.
    Affirmed.
    March 14, 1904:
   Opinion bt

Mr. Justice Mestbezat,

We have considered the questions raised on this record in the opinion filed this day in the case of James W. Daltry v. Media Electric Light, Heat & Power Company, and for the reasons there given this judgment is affirmed.


author: Per Curiam,

text:
    Caughey, Appellants, v. Bridenbaugh.

      Will — Probate—Undue influence — Evidence.
    On an issue devisavit vel non where it appears that the testatrix, an elderly widow, without near relatives, of perfectly sound mind, and with full knowledge of what she was doing, made her will, giving the bulk of her estate to her pastor and his family, binding instructions in favor of the will are proper, where the evidence shows that during the closing years of the testatrix’s life, she lived in great intimacy with her pastor, his wife and family, that she received kindnesses from them, gave them presents, and settled a portion of her estate during her lifetime upon her pastor, and there is no evidence whatever of any influence or persuasion exercised upon her by the beneficiaries either before the making of her will, or at the time thereof.

      Argued Feb. 29, 1904.
    Appeal, No. 36, Jan. T., 1904, by plaintiff, from judgment of C: P. Berks Co., Oct. T., 1902, No. 84', on verdict for defendant in case of Ella L. Caughey, Frank D. Shouse and Carrie L. Thomson v. Samuel R. Bridenbaugh.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Issue devisavit vel non.
    At the trial the court gave binding instructions for defendant.
    On a rule for a new trial Endlich, J., filed the following opinion:
    In an issue tried in the common pleas involving the validity of a will assailed on the ground of undue influence, testamentary incapacity, etc., the trial judge sits as a chancellor: McCormick v. McCormick, 194 Pa. 107,117 ; Robinson v. Robinson, 203 Pa. 400, 416. If there is no evidence beyond a scintilla to sustain the contestants’ allegation, it becomes his duty, of course, to instruct the jury in favor of the will: Eckert v. Flowry, 43 Pa. 46; Barbey v. Boardman, 202 Pa. 185. But that is not the whole of his duty. In every case tried before a jury in which the trial judge sits as a chancellor, the evidence is addressed to him quite as much as to the jury— must as a whole be judged of by him independently of the jury —must satisfy his conscience as well as the jury — and cannot be rightfully submitted to the jury as the basis of any finding which he would not approve; in a word, he cannot permit the jury to do what he, as a chancellor, would not do: Rowand v. Finney, 96 Pa. 192; Reno v. Moss, 120 Pa. 49. And since it is his individual judgment upon the evidence given before him, by witnesses appearing before him, that is to control his action, the duty referred to is properly to be performed at the trial of the issue by directing a verdict clearly required, rather than submitting an inadequate case to the jury and in the event of their conclusion being unsatisfactory, setting it aside, or possibly, where the issue is framed as this one was, entering judgment non obstante veredicto; for these are remedies applied under our statute by the court in banc, not by the trial judge as such, and the application of either tends to produce the appearance, always to be regretted, of a difference of opinion between court and jury.
    In the present case there is really no conflict of testimony. The testatrix was a member of a German reformed congregation of which proponent was and is the pastor. It was not until quite near the close of 1898 or the beginning of 1899 that the relations between them were anything but the ordinary ones of pastor and parishioner. For years in matters of investments, and in 1898 in the settlement of the estate of her sister with whom she had lived, who died in March of that year, and from whom she derived the bulk of her property, then amounting in the whole to about $20,000, testatrix had had the services of a certain member of this bar. She had expressed to him (as she did to others) her annoyance over the fact that the greater part of her estate, upon which collateral inheritance tax had been paid when it came to her from her sister, should again be subject thereto upon her own death; had asked him how that could be avoided, and had been told by him (as she was by others) that she could avoid it by giving away her property while she lived. She had spoken to him in an indefinite way about drawing her will; but she had actually asked this service of an old and intimate acquaintance, the husband of a cousin, who was not a lawyer. She seems to have had little intercourse with most of her relatives, and not much kindly feeling for the contestants who are the nearest of her blood, but through whose father she had lost heavily. In the earliest intimations she gave of her intentions concerning the disposition of her property, she disclosed the purpose of excluding the contestants from any share in it, but yielded to the persuasion of the person with whom she was discussing the matter, and who was to draw her will, so far as to say that she would leave them the house she lived in or its equivalent in money- — which is substantially what the will in dispute gives them.
    In the fall of 1898 the testatrix requested the proponent to call upon her more frequently than it had been his custom to do. It was in December of that year that she first mentioned to him the matter of a will, requesting his advice as to some church charity she might remember with a bequest, whereupon he named several for her consideration. Early in 1899, having made up her mind on this subject, she asked him to write her will and dictated to him a number of items which he took down by way of memoranda. When she asked him to be the executor of the will, he declined to write it, but suggested among others Rev. A. C. Whitmer, of Lancaster, with some of whose writings on mission matters the testatrix was acquainted, and whom eventually the proponent invited to Reading for the pur-; pose. Tjhe issue, as formulated in the precept of the orphans’ court, making the contestants the plaintiffs, they at the trial admitted the due execution and proof of the will in controversy, and called and accredited as their witnesses the only persons who, besides the proponent, know anything whatever about the manner and time and circumstances of the making of it or of either of the two wills that preceded it. By their testimony it appears that in February, 1899, Whitmer, at proponent’s invitation, came to his house in Reading, there met the testatrix, and the proponent being in and out of the room, wrote her will, using memoranda, in proponent’s handwriting — each being read by the scrivener to the testatrix and approved by her — all of them referring to specific bequests, and none of them to the proponent’s being named as executor or residuary legatee. The direction to that effect was given by the testatrix. Executed at proponent’s house and witnessed by the scrivener and a physician living nearby, whom proponent called in, the will was taken away by testatrix after demonstrative acts and expressions on her part of satisfaction with what she had done.
    Early in March of the same year the testatrix transferred to the proponent, without consideration, upon the books of the Farmers’ and Union banks, eighty-eight shares of the stock thereof, worth $7,194, the dividends upon which were, while she lived, handed to her by proponent as he received them.
    About two weeks thereafter, Rev. A. C. Whitmer was again called to Reading by a letter from proponent advising him that testatrix desired to alter her will. Meeting her at proponent’s house, he was told by her that she wished the same person to rewrite her will as had written it, and proceeded to do so according to her directions — the changes made relating to minor items, of which there was quite a number, but marking no departure from the main original disposition of her estate. After the writing and before the execution of this instrument, Whitmer, while alone with the testatrix, asked her whether any one had influenced her in making any part of this will — to which she replied with an emphatic no. On this occasion also the same scrivener drew a deed (from hers brought with her by the testatrix), in which for the consideration of one dollar, the testatrix conveyed to proponent the house she lived in. Both instruments were executed (and the deed acknowledged) the following morning, testatrix calling at proponent’s house for Whitmer who was to witness the execution of both. The will was retained by testatrix. The deed was not put upon record. It was subsequently on or about June 4, 1901, returned to and destroyed by the testatrix, who at the same time executed another drawn by proponent’s son (then a student at law) by proponent’s direction, reserving to the grantor a life estate in the property. A consideration is therein mentioned of #1,900, the value put upon the property by the testatrix (about #2,100) less the value of the life-estate as estimated by the scrivener. No consideration, however, passed. This deed remained unrecorded while testatrix lived.
    In August, 1901, the testatrix at proponent’s house asked his son to rewrite her will, which he agreed to do, and for which purpose they met at the same house a day or two after. The will to be rewritten was over two years old, and had three or four codicils added to it in testatrix’s handwriting. She directed a few changes, the most important being a bequest of #500 to Florence Ball (of which the latter knew nothing). The scrivener simply rewrote the provisions of the old will and its codicils with the alterations directed. When drawn, the instrument was read over to testatrix, handed to her, and examined, pronounced satisfactory and taken away by her. The following morning, by appointment, she brought it to the office of the scrivener’s preceptors and there, after again looking over it, executed it, expressing her surprise and approval at the formality of signing every page, because “ so many signatures should make a will proof against attack.” She took the executed will with her when she left the office, and subsequently gave the scrivener a fee for drawing it. Sometime thereafter, she handed the will to the proponent, and it remained in his custody until it was probated. To Whitmer, the testatrix on one occasion-spoke of this will, 'explained her reasons for having it made anew, and expressed her contentment with it. This is the will contested in this proceeding.
    At the time of her death, April 29, 1902, the testatrix was seventy-seven years old. The closer association with proponent, which she had sought, had become an intimacy that embraced his family and continued to the end. There is no evidence of the utterance by her of any complaints of, or dissatisfaction with them. She often spoke of them as her chosen friends — her friends not by proximity or long acquaintance but by choice. Proponent’s visits to her were frequent. So were hers at his house. It became her habit to dine there on Sundays. She gave the members of the family Christmas remembrances, and at various times, the last three or four days before her death, made money presents to proponent ranging from $10 to $400, and aggregating $615.50. She sought and had his assistance in some business matters. Once he advised her in the purchase of a small house. Another time, in September, 1899, he was active in procuring an assignment to her of a $3,000 mortgage upon the parsonage belonging to the church and occupied by him, the interest on which he had been paying to the mortgagee and continued thereafter to pay to her. On another occasion, in October, 1899, he found for her an investment for $2,800 upon a judgment note of two of his parishioners, one of them the physician who witnessed her will. As the intimacy between her and proponent and his family went on, cultivated on both sides, there was a corresponding impairment of the frequency and doubtless the cordiality of her intercourse with her neighbors; especially when her dependence upon their attentions became diminished by her employing, in the fall of 1899, as a companion, a young woman, Florence Ball, who had been for a few years prior to 1894 an inmate of proponent’s household — whom, upon testatrix’s inquiring for a suitable person, proponent’s wife had suggested — to whom, at testatrix’s instance, she had written to Los Angeles, Cal., where she was living with her brother — and who, at her own and her brother’s expense, had come on to take the situation. There is nothing in the evidence to show that testatrix was mentally or bodily weak. On the contrary, it is evident that she was a woman of a rather positive sort, of strong feelings, and physically and intellectually well preserved. She was in the habit of making annual visits to friends at some distance from Reading, at Lititz, Easton, etc., always except once unattended. One of these visits she made alone shortly before her death. Her handwriting, of which there are in evidence several specimens, done both before and subsequently to the will, shows a regularity and firmness quite remarkable considering her age, while the style and substance of the writings convey no suggestion whatever of mental decay, but rather of alertness and vigor.
    The statement of facts thus far given comprises the substance of the relevant testimony whose correctness is either admitted or is beyond the possibility of dispute by the contestants, or comes from witnesses other than the proponent, standing uncontradicted. It includes nothing resting in the uncorroborated testimony of the proponent, whose credibility the contestants are, of course, at liberty to question. His testimony — and under the rule established by a long line of decisions from Brawdy v. Brawdy, 7 Pa. 157, down, as applicable to oases tried before a jury in which the trial judge sits as chancellor, it cannot be ignored, but in so far as it is responsive must be overcome — positively denies the assertion by him of, or the attempt to exert, any influence over the testatrix by suggestion, persuasion or prompting of any description, save that be admits having recommended to her a certain church charity with a view to a bequest which she refused to consider. He asserts, detailing testatrix’s acts and statements as well as his own, that in all the benefits conferred upon him or his family by her, executed during her life orto take effect after her death, she acted without any solicitation or constraint, moved solely by kindly feelings towards himself and friendly affection and devoted interest in his family. He avers, again .giving conversations, etc., that the methods pursued, whereby what she did remained unknown to her relatives, were adopted in deference to her explicit desire that they should so remain; that he had nothing to do with bringing Florence Ball from the west to live with testatrix ; that she at all times had perfect control over her will even in his hands ; and that his custody of it, beginning some time after its final execution, had its origin, according to testatrix’s statement to him, in the misbehavior and threats of a cousin who wanted to be made her executor, whom she objected to, and whose violence she feared — and it may be noted that in this he is corroborated by two writings'of the testatrix preserved with her will. He does not pretend to have advised her to consult an attorney about her will or to employ one to write it. But he swears that the suggestion of a scrivener from out of town was hers, and that the selection of the particular persons who acted in that capacity was her own deliberate act. As to the conveyance of the house and the transfer of the bank stock, he testifies that they were made at her repeatedly expressed desire to do in her lifetime what would otherwise have to be done after her death — the thought of it having come to her, as she explained, through a recent gift of bank stock by another old lady in Reading to a pastor.
    In considering the effect of all this, it is necessary to bear in mind the meaning of the term “ undue influence ” as affecting the validity of a will. The word “ undue ” in this connection is not used in the sense lexicographers give to it as one of its popular meanings — “disproportionate,” “inordinate,” “unworthy,” as in the phrases “undue excitement,” “undue partiality,” “ undue attachment,” or the like. As a legal phrase, it is used in a stricter sense as denoting something wrong according to a standard of morals which the law enforces in the relations of men, and therefore something legally wrong, something violative of a legal duty — in a word something illegal. And again the word “influence” does not refer to any and every line of conduct capable of disposing in one’s favor a free and self-directing mind, but to a control acquired over another which virtually destroys his free agency. -In Browne v. Molliston, 8 Whart. 129, it was said, at p. 138, that, in order to constitute undue influence sufficient to avoid a will, “there must be imprisonment of the'body or mind;” nor is there a decision in Pennsylvania which recognizes anything short of that as satisfying the legal definition of undue influence. In.deed that definition, as indispensably involving the existence of fraud, or threats, or misrepresentation, or circumvention, or inordinate flattery, or physical, or moral coércion to such a degree as to subjugate the mind of the testator, to destroy his free agency and to operate as a present constraint upon him in the making of the will, has been so thoroughly settled in this state that it is only necessary to cite the recent decisions in Logan’s Est., 195 Pa. 282, 289, and Englert v. Englert, 198 Pa. 326, 331. It may be more important for present purposes to refer, in some detail, to eases which specifically point out what is not undue influence. In Miller v. Miller, 3 S. & R. 267, Mr. Chief Justice Tilghman says, at p. 269:
    The procuring a will to be made, unless by foul means, is nothing against its validity. ... A man has a right, by fair argument or persuasion, to induce another to make a will, and even to make it in his own favor.
    And Mr. Justice Duncan adds, at p. 270 :
    Influence, persuasion, may be fairly used. A will may be honestly procured. Many wills, indeed, would be destroyed if you inquire into the degrees of influence and persuasion. A will procured by circumvention will be set aside; but a will procured by honest means, by acts of kindness, attention, and by importunate persuasion, which delicate minds would shrink from, would not be set aside on this ground alone.
    In- Tawney v. Long, 76 Pa. 106, Mr. Justice Gordon says, at p. 115:
    It has been held that general bad treatment furnishes no evidence of such (undue) influence, and we may add, neither does general kindness, though this may have a powerful influence upon a weak mind, unless it is shown to be part of a crafty arrangement to procure the testamentary disposition.
    In Trost v. Dingier, 118 Pa. 259, the same learned judge says, at p. 270:
    Solicitations, however importunate, cannot of themselves constitute undue influence; for though these may have a constraining effect, they do not destroy the testator’s power to freely dispose of his estate.
    In Englert v. Englert, supra, the language just quoted is approvingly repeated by Mr. Justice Brown, at p. 331; and in Robinson v. Robinson, 203 Pa. 400, 435, 436, instructions to the same effect are pronounced correct.
    To these authorities may be added Leech v. Leech, 5 Clark, 86, where Judge King says, at p. 92:
    Kindness, attention, care and devotion manifested towards a testator are not undue influence over him, such as would invalidate his will. Nor will fair solicitations by a party in whose favor it is made impeach it — and the observation of Lord Penzanoe, in Parfitt v. Lawless, L. R. 2 Prob. & Div. 462, that undue influence, to set aside a will- — must not be the influence of affection or attachment; it must not be the mere desire pf gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act.
    It is thus very manifest that undue influence is not to be predicated of an impression, though seemingly exaggerated, that is produced upon another by kindly offices, gratifying attentions, the force of mutually voluntary association revealing secret needs and unspoken desires. Neither does it consist in bad taste, in a want of delicacy, in a willingness to cultivate another’s good graces even with a view to possibly profiting thereby, or in a readiness to accept benefits generously and undeservedly offered. These and similar things belong to the domain of what Chief Justice Gibson in Kintzing v. McElrath, 5 Pa. 467, 469, calls “principles of morality too subtle for administration by an earthly tribunal,” and therefore not attempted to be enforced by our law. The latter contents itself with declaring, as was declared in Robinson v. Robinson, supra, that a testator may be coaxed, but must not be driven either by mental coercion or by physical force. And hence, when undue influence is alleged, the inquiry is not whether the beneficiary’s conduct was that which was becoming to him in his station, whether it was judicious, discreet, high-toned or disinterested, but whether there was any wrong in it whereby the free agency of the testator was set at naught in the making of his will. That wrong, where its end and purpose are the benefit of the party perpetrating it, is practically indistinguishable from fraud: Boyd v. Boyd, 66 Pa. 283, 293.
    Coming now to the question of the evidence necessary to establish this wrong without direct proof of it, it is as true of this sort of cases as it is of others in which fraud is charged (see Mead v. Conroe, 113 Pa. 220, 228) that it cannot be made out by circumstances which, though to be expected if there was fraud, are equally consistent with its absence, and that such circumstances cannot, whether taken singly or collectively, justify an inference of wrongdoing. In the language of the Lord Chancellor, in Boyse v. Rossborough, 6 H. L. Cas. 2, at p. 51 :
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of it's having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.
    Hence, in Thompson v. Kyner, 65 Pa. 368, at p. 380, an offer to show certain facts in support of an allegation of undue influence was held to have been properly rejected, because they were not “ inconsistent with testamentary capacity or entire independence.”
    It has been so often declared that it would be foolish to attempt a citation of the authorities that the proof or admission of the due execution of a will is the proof or admission also of the testator’s testamentary capacity at the time. Testamentary capacity means the possession of a clear conception of what one is doing and who one’s heirs are, of the property one has, and of the disposition one is making of it: McCormick v. McCormick, 194 Pa. 107, 111. Whatever may be the difference in the manner or burden of proof as to undue influence between the case of a stranger to the testator’s blood and that of a relative — and there is no difference between them in respect to what constitutes undue influence- — it is clear under the authorities that neither want of kinship, nor the existence of confidential relations, nor activity in drawing the will, nor all of these, can be sufficient to overcome the denial of undue influence by the proponent and his explanation of the attendant circumstances, where not only testamentary capacity is conceded but there is nothing in the case to suggest any bodily or mental weakness or infirmity on the part of the testator creating a susceptibility to influence, which, though short of incapacity, may yet be enough to render it probable that the disposition made of his estate was the act of some one else dominating his will, that person being pointed out by the intrinsic evidence furnished by the instrument itself. The decisive weight of the presence or absence in the evidence of ■something indicative of such weakness or infirmity in a case ■of that description is emphasized by a long and uniform line of decisions. It is’ indicated in Boyd v. Boyd, 66 Pa. 283, at •p. 293, in the assertion that where the beneficiary has no claims of lawful relationship:
    .General evidence of power exercised over the testator, especially if he be of comparatively weak mind from age or bodily infirmity, though not to such an extent as to destroy testamentary capacity, will be enough to raise a presumption. . . . Particularly .... when the party to be benefited stands in a confidential relation to the testator.
    This decision is explained in Frew v. Clarke, 80 Pa. 170, at p. 180, as “ predicated of general evidence of power exercised over a testator of comparatively weak mind,” and it is there asserted squarely, as applying to a beneficiary who was a stranger to the testator’s blood, that—
    If the mental capacity of (the testator) had been impaired; if he had become weak from age or bodily infirmity, although not to such an extent as to destroy his testamentary capacity, it might have shifted the burden of proof and required the (beneficiary) to negative, by evidence, a presumption of undue . influence.
    In Cuthbertson v. Yardley, 97 Pa. 163 (and the decision between the same parties in 108 Pa. 395, involves the same elements), Yardley, a conveyancer often employed by and a personal friend, not a relative, of Neill, had drafted a codicil to the latter’s will giving to himself the residue of the estate, there being evidence that Neill had had at least two, possibly three strokes of paralysis, which had left him in a partly crippled and debilitated condition. After declaring the entire consistency of Frew v. Clarke, supra, with Boyd v. Boyd, supra, the court restates the principle of the latter decision thus:
    Where the alleged testator is shown by evidence to be weak in mind, whether arising from age, bodily infirmity, great sorrow or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it.
    And the case is decided, at p. 173, upon the ground that— it cannot be disputed that there was evidence .... that the testator was not the same man physically and intellectually when he executed the codicil as when he made the original will. .... Then the onus was thrown on Yardley to prove that Neill fully understood the value of his property, etc.

      In Wilson’s App., 99 Pa. 545, the testator when in undoubted health had made a will leaving his property to his relations. When in great age and suffering from great infirmities he made another, radically different, through the procurement and instrumentality of a trusted friend and adviser to whom a substantial benefit was given. Referring to this, to the changes made and to the confidential relations proven, Mr. Justice Green, says, at p. 549:
    In view of these facts, and of the great age and physical infirmity of the testator, we cannot doubt the propriety of an issue to determine whether undue influence was exerted to produce the will in controversy.
    Then comes Harrison’s App., 100 Pa. 458, where a testator eighty years old, but mentally and physically vigorous, had left the bulk of his estate to one daughter, in a will drawn by her husband, who was his confidential adviser and named as trustee and coexecutor, Judge Eiavell, whose opinion refusing to send the case to a jury is adopted by the Supreme Court as its own, says p. 470, citing a New York .decision:
    No case has gone so far as to overthrow a will duly executed, when it was shown that the party executing it was of sound mind and clearly understood its contents, though it was drawn by the person taking the estate.
    Next, in Caldwell v. Anderson, 104 Pa. 199, the law is thus summarized, at p. 204.
    Where the testator is shown to be of weak mind, without regard to the cause or causes from which that weakness has arisen, though it be not sufficient in itself to wholly destroy testamentary capacity, and the person by whom, or under whose advice, the will has been written, being a stranger to the testator’s blood, receives a legacy or bequest, large as compared to the testator’s estate, the burden of proof shifts from the contestants to the proponent of the will. In such case not only must testamentary capacity be affirmatively proved, but it must also be shown that the testator acted with a full knowledge of the value of his estate.
    In Yorke’s Est., 185 Pa. 61, a spinster of eighty-six, with impaired vision, but alert and of clear understanding, executed in favor of one of her nieces a codicil drawn according to testatrix’s instructions by the niece’s husband who was testatrix’s confidential adviser, and who was not present at its execution. An issue devisavit vel non was refused by the orphans’ court of Philadelphia, President Judge Hanna saying (see P-70):
    The rule that the burden of proof is upon the confidential adviser who prepared the will under which he or members of his family take the bulk of the estate or substantial benefits, to the exclusion of children or next of kin of the testator, is applied where the testimony is conflicting as to the mental capacity of the testator, either from the effects of old age, disease, mental impairment or intemperate habits, and the confidential adviser is a stranger to the testator, or a near relative >vho has acted in the procurement of the will in his or her favor to the exclusion of others equally entitled, is shown to have exercised a controlling influence over the mind of the testator. But not so,'when the testator is proved to possess full and entire testamentary capacity, even though, to some extent, enfeebled by the infirmities of age. In such case, even although the will be prepared by the confidential friend and adviser, and he or members of his family are bequeathed the whole or larger part of the estate, and he be made executor, the presumption of the validity of the will and disposition made by the testator is in accordance with his voluntary and uncontrolled wish and desire still exists.
    The decision of the orphans’ court was approved by the Supreme Court.
    Again, in Logan’s Est., 195 Pa. 282, where a son who was his mother’s attorney in fact procured the scrivener to write her will from data furnished by the son, was made the principal beneficiary, and concealed that fact from his sister, the contestant, Judge Stewart, upon whose opinion the decree refusing an issue was affirmed, says at p. 289—
    Where .... the charge is that undue influence was exerted upon a mind healthy, strong and free, nothing short of direct proof will avail, and it must be clear and convincing.
    Similarly in Friend’s Est., 198 Pa. 363, a contest over a will largely preferring a son who was his mother’s trusted and confidential agent, the fact of her faculties appearing unimpaired was emphasized as a controlling ground of the decision that there was no evidence of undue influence. And so, on the contrary, in Robinson v. Robinson, 203 Pa. 400, 422, 425, evidence of weakness is dwelt upon as significant in leading to the opposite conclusion.
    In McEnroe v. McEnroe, 201 Pa. 477, the chief beneficiary in the will of a testator who had nephews and nieces was a second cousin, a Roman Catholic priest, between whom and the testator there had been a long and close friendship; who, during testator’s last illness, had visited him, askedhim whether he had made his will, and receiving a negative reply advised him to do so,- and who at testator’s solicitation thereupon wrote down the outlines of the will, from testator’s dictation, from which an attorney previously unknown to the beneficiary prepared the will and had it executed. At p. 482, Mr. Justice Dean, after conceding for the purposes of the case the existence of a confidential relation, says :
    Here one of the most significant facts tending to show undue influence is wholly absent; there was no impairment of mental powers, no clouding of intelligence.
    Finally, in Hook’s Est., 207 Pa. 203, which was the case of a preference of children who had been attentive to the testatrix in her old age, and one of whom occupied a confidential relation towards her as attorney and business agent, the chief justice says on the subject of undue influence:
    To set aside a will on this ground, where the testator is in full possession of his faculties, and his testamentary capacity admitted or established, the evidence must be clear and strong. Mere opinions or suspicions or belief not founded on facts testified to will not be sufficient.
    In this connection it may be observed that the mere age of a testator does not prove the weakness referred to, as is explicitly ruled in Thompson v. Kyner, 65 Pa. 368, where Mr. Chief Justice Thompson says, at p. 380 :
    The (contrary) theory of the plaintiff’s case rests on a presumption from a presumption, which is not allowable, namely, that the testator, being an old man, must be presumed to have been weak, and therefore it is to be presumed that the defendant, who was taking care of his farm and was an. active-minded man, coerced his will.
    As already noted, there is conspicuous in this case an absence of anything that would indicate any weakness or infirmity in the testatrix, whilst on the other hand there is strong evidence of her perfect understanding of what she was doing and of her mental and physical ability both to will and to do. Half a year or more before she made any testament she had decided against the contestants as to anything beyond the house she lived in or an equivalent of its value in money. Holding on to that purpose, that is what she gave them'in the first will she made, gave them again in the second, and finally gave them in the will in controversy. All the wills were written under her personal direction as to every detail. They were in her possession before and after execution during nearly the whole of a period of three years. During this time, twice in having them rewritten, three or four times by the addition of codicils in her own hand, she reaffirmed the disposition she had originally made in favor of the proponent. She repudiated the insinuation that any one had influenced her in any part of her determinations, and instead of ever complaining of their tenor or of her relations with the proponent or his family, she repeatedly expressed her intense satisfaction over both. If, as is profoundly remarked in Robinson v. Robinson, 203 Pa. 400, 425, thwarted weakness is evidenced by complaints accompanied by inaction, it must also be true that uncontrolled freedom of action is shown by an absence of complaints re-enforced by positive expressions of satisfaction and acts unequivocally indicative thereof. The testatrix’s expressions and acts just referred to are certainly such. If the conveyance of her house, the transfer of her bank stock, and the gifts of money to the. proponent after the determination to make him the residuary legatee had been fixed upon paper may not fairly be looked upon as acts of this kind (though in view of the testatrix’s abhorrence of the collateral inheritance tax law — of the suggestion made to her by her legal adviser and others of the possibility of avoiding it by giving her property away — and of the fact that she continued in undisturbed possession of the house and enjoyment of the income from the stock while she lived, they would seem to tend that way) — yet the most that can be said of them favorably to the contestants is that they are equally open to a contrary interpretation ; which is not enough to give them the force of evidence of undue influence. It has been laid down that there is no rule of law or morals which will prevent clergymen from receiving gifts, great or small, from their parishioners: Greenfield’s Est., 24 Pa. 232, 240. But the conclusiveness of these transfers in a proceeding in equity between the donor and the donee, is not the test of their evidential effect in this proceeding. Conceding that in the former a legal presumption of invalidity would have arisen against the donee, that circumstance cannot here be made the basis of a finding of undue influence in the execution of the will as a matter of fact. An inference of fact can surely not be based upon a legal presumption which, while it stands, stands in the place and ignores the question of fact. When this matter of gifts is eliminated as one at least as capable of militating against as in favor of the contestants, what is there left of the case undisposed of by the admitted fact of testatrix’s testamentary capacity, and the indisputable one of her freedom from any such weakness as would render her liable to be imposed upon ? There is nothing in the testimony of the draftsman of her wills or of any witness, or in any remembered saying of the testatrix to show that proponent had suggested any provision embodied in them favorable to himself or his family or any one he was interested in, or in any way taken advantage of his confidential relation with her, conceding that character to the relation existing between them. His own testimony is emphatically that he had not, and he stands uncontradicted. To say that the jury might nevertheless have presumed the contrary, is to say that a presumption against the evidence may be made the foundation of a valid finding of fact, which cannot be : Hays v. Hays, 6 Pa. 368, 370. There is not only no indication that she did not fully understand what she was doing when she made her successive wills (as there was in Scattergood v. Kirk, 192 Pa. 263), but the evidence is uncontradicted, and most of it unimpeachable by contestants, that she was fully able to understand it, carefully pondered it, did understand it, knew it by heart, expressed her satisfaction over it, and persisted in it for three years knowing that it in a large measure excluded and would disappoint her relatives. Suppose she did, the evening before she died, let fall some vague expressions to one of the witnesses which the latter construed as evidencing a doubt as to the propriety of what she had done. At the most the witness’s statement was only one of opinion, or suspicion, or belief, and therefore unavailing as proof (see Hook’s Est., supra), as is also the assertion by certain other witnesses that after Florence Ball’s arrival testatrix was not as free to go about and converse as she had been — an imputation explicitly denied and not borne out by anything tangible in tbe evidence. Besides, if testatrix did mean to express dissatisfaction with something she had done, nobody can tell what portion of her testamentary disposition she had in mind, if any. And finally, the inquiry here is as to her free agency, her real and uncontrolled intention at the time of the execution of the will in controversy.
    There remains the so-called unnaturalness of the will, and of the entire conduct of the testatrix in relation to her property — the fact that by gifts and by testamentary disposition she deprived her nearest relatives of the succession to so large a proportion of her estate in favor of one who is a stranger to her blood. The argument has' a legitimate basis, but it is a weak one at best. Says Mr. Justice Pax son, in Cauffman v. Long, 82 Pa. 72, at p. 77.
    The growing disposition of courts and juries to set aside last wills and testaments, and to substitute in lieu thereof their own notions as to what a testator should do with his property, is not to be encouraged. No right of the citizen is more valued than the power to dispose of his property by will. No right is more solemnly assured to him by the law. Nor does it depend in any sense upon the judicious exercise of it. It rarely happens that a man bequeaths his estate to the entire satisfaction of either his family or friends. In many instances testamentary dispositions of property seem harsh, if not unjust, the result perhaps of prejudice as to some of the testator’s kindred, or undue partiality as to others. But these are matters about which we have no concern. The law wisely secures equality of distribution where a man dies intestate. But the very object of a will is to produce inequality, and to ... . reward those who have been affectionate, and to punish those who have been disobedient. It is doubtless true that narrow prejudice sometimes interferes with the. wisdom of such arrangements. This is due to the imperfections of our human nature. It must be remembered that in this country a man’s prejudices are a part of his liberty. He has a right to them; he may be unjust to his children or relatives; he is entitled to the control of his property while living, and by will to direct its use after his death.
    A testator is not bound to furnish a reason satisfactory to others for what he has done or is doing with his own. But in this case a sufficient reason lies upon the surface. The testatrix was an old woman practically alone in the world. She had relatives; but some of them she seems not to have had anything to do with — some of them she did not like — some of them she thought had already had more from her than was their due. It does not appear that she forgot their existence ; for her will contains a long list of small bequests in the nature of remembrances. Beyond that she did not feel under obligations to them. It is not unnatural to give or leave the bulk of one’s property to those with whom one associates and whom one likes, rather than to-those one rarely sees or disapproves of. The testatrix’s friends were certainly nearer to her than most of her relations. Then, too, it is one of the legitimate uses to which a person in the situation in which the testatrix was may put her means, to secure herself such environment, such attentions as are acceptable to her. If thereby her happiness and comfort are increased, it is perhaps difficult to conceive in what way more satisfactory to her she could employ her money. It is as clear as can be from the evidence in this case that the testatrix found exceeding great pleasure and contentment in her relations with proponent and his family.and in the attentions they bestowed upon her, and that she was very fond of these people. If prompted by a' feeling of admiration for proponent and affection for his family, or by a sense of gratitude for kindnesses received at their hands, or by a shrewd desire to insure their continuance, she saw fit to present the proponent with part of her estate (her enjoyment of her home and income not being thereby interfered with) and to assure him, by a will whose provisions he was acquainted with, a portion of the remainder upon her death — it would be a bold thing to say that she was doing that which was unnatural from her standpoint, or that her judgment was at fault or her choice constrained. Indeed, in the absence of any evidence of mental or bodily weakness inconsistent with the assumption of a conscious motive freely acted upon, all this appears ill-calculated to base an inference of undue influence, but rather tends the other way.
    It would serve no useful purpose to .prolong this discussion by a detailed consideration of the cases relied on by contestants. Of the Pennsylvania cases some, indeed, have already been referred to. The remainder relate to questions arising in proceedings involving gifts inter vivos, the principles controlling of which are admittedly not identical with those applicable to testamentary dispositions. The cases gathered from other jurisdictions, however respectable, in which, as to such, different rules obtain from those settled in this state are, of course, not authoritative here.
    In view of the fact that this issue was sent over by the orphans’ court after a hearing at which the testimony appears to have been given by substantially the same witnesses in substantially the same way, the power to direct a verdict was exercised with extreme reluctance and only under the pressure of a constraining sense of duty. It is, however, proper to note that, as gathered from statements of counsel, in the presentation of the case in the orphans’ court, the relation of the most material witnesses to the respective parties was reversed, and therefore the range of inferences capable of being contended for by contestants much Avidor and the question.of credibility much more important. A painstaking re-examination of the case as here presented has led to the conclusion that, whilst some of the principles involved Avere perhaps not apprehended with entire accuracy, the direction of a verdict for proponent was imperative. Conceding that upon him was the burden of explaining whatever was left unexplained by witnesses called by contestants, yet his comprehensive explanation of the circumstances and denial of wrong, under oath, supported in most of the significant details by the Avitnesses referred to or by witnesses called in his behalf, and in others corroborated by undisputed facts, must, under the decisions cited, be accepted, as discharging that burden in the absence both of direct proof of undue influence actually exercised by proponent, and of a presumption thereof arising against him from something in the evidence indicating weakness or infirmity in the testatrix.
    The rule to show cause is discharged.

      Error assigned was in giving binding instructions for defendant.

      William Kerper Stevens, of Stevens Stevens, for appellants.

      Jefferson Snyder, of Snyder §■ Zieber and Isaac Eiester, with them O. II. Buhl, for appellee.
    March 14, 1904 :
   Per Curiam,

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


text:
    Mease, Appellant, v. United Traction Company.

      Negligence — Street railways — “ Stop, look and listen ” — Contributory negligence — Nonsuit.
    In an action against a street railway company to recover damages for personal injuries sustained at a crossing, a nonsuit is properly entered where the plaintiff’s own evidence shows that when at the building line of the street he looked for a car, and saw one a block away, about 480 feet, approaching the crossing; that he drove slowly twenty-eight feet to the track and looked a second time when his horse was on the track, or about to step on it, and saw the car at the middle of the block, and that he drove on at a slow walk, and the front wheel of his wagon was struck almost instantly, according to his own testimony, within a half second of the time he looked.

      Evidence — Mingling of relevant and irrelevant matter — Practice, C. P.

    When an offer of evidence contains relevant and irrelevant matter and is made as a whole, the judge is not bound to separate the good from the bad but may reject it all.
    Argued February 29, 1904.
    Appeal, No. 39, Jan. T., 1904, by plaintiff, from order of C. P. Berks Co., March T., 1903,. No. 49, refusing to take off nonsuit in case of George Mease y. United Traction Company.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Endlich, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1) ruling on evidence referred to in the opinion of the Supreme Court; (2) refusal to take off non-suit.

      W. B. Bechtel, of Bechtel <& Shatters, for appellant.

      O. E. Ruhl, with him J. Milton Miller and R. L. Jones, for appellee.
    March 14, 1904:
   Per Curiam,

There is no view of the plaintiff’s testimony that relieves him from the charge of contributory negligence. He testified that when at the building line of the street he looked for a car and saw one a block away, about 480 feet, approaching the crossing. He drove slowly twenty-eight feet to the track and looked a second time when his horse was on the track or about to step on it, and saw the car at the middle of the block. He drove on at a slow walk and the front wheel of his wagon was struck almost instantly, according to his testimony, within a half second of the time he looked. He was evidently mistaken as to either the time or the distance. If he was right as to the time, he drove immediately in front of the car. If he was right as to the distance, which is less probable, he drove onto the crossing without quickening the pace of his horse, when he knew the car had run 240 feet while he was riding from the building line, and that he had twenty feet more to go in order to clear the track with his wagon. This gave him only a bare chance of crossing in safety, and he took it at his risk. He evidently acted on the assumption, as did the plaintiff in Smith v. Electric Traction Co., 187 Pa. 110, that if he reached the crossing first the duty to avoid a collision rested wholly on the motorman, and with a full knowlege of the situation he placed himself in a position of manifest danger.

If the competent testimony included in the offer which was made and rejected as a whole had been received, it would not have helped the plaintiff’s case. At most it would have corroborated him as to the position of the car, but it would also have shown that its speed was not great, because the car was stopped within less than twice its length after the collision. The offer was however properly rejected. When an offer of evidence contains relevant and irrelevant matter and is made as a whole, the judge is not bound to separate the good from the bad but may reject it all: Wharton v. Douglass, 76 Pa. 273; Smith v. Arsenal Bank, 104 Pa. 518; Mundis v. Emig, 171 Pa. 417.

The judgment is affirmed.


text:
    Stauffer v. Reading, Appellant.

      New trial — Appeal—Supreme Court — Act of May 20, 1891, P. L. 101.
    The Supreme Court will not exercise the authority conferred upon it by the Act of May 20, 1891, P. L. 101, to grant a new trial on the ground that a verdict is excessive, except where the injustice in allowing an excessive verdict to stand is so manifest as to show clear abuse of discretion by the trial judge. >
    Argued Feb. 29, 1904.
    Appeal, No. 236, Jan. T., 1904, by defendant, from judgment of C. P. Berks Co., Jan.-T., 1900, No. 33, on verdict for plaintiff in case of A. K. Stauffer v. City of Reading.
    Before Fell., Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from award of jury of view.
    Rule for new trial.
    Enough, J., filed the following opinion:
    The rule for a new trial having been reinstated by the decision of the Supreme Court of J uly 9,1903, it comes before the court for disposition on the ground originally urged in support of it, viz., the alleged excessiveness of the verdict. When it was here before, the court was of the opinion that the damages allowed are high.' It is of the same opinion still. But now as then, it is confronted with the difficulty that the evidence affords no safe measure of reduction in dollars and cents. The way out of this difficulty attempted in the former decision has been-adjudged inadmissible because beyond the discretion of the court in imposing terms as a condition for the refusal of a new trial. In these circumstances it is not apparent that the verdict can legitimately be disturbed. It is, of course, true that “ the trial judge is, in an important sense, the thirteenth juror, and when the amount of the verdict shows that it must have been arrived at by the adoption of an erroneous measure of damages or a mistake in computation, he should not hesitate to set aside: ” Robb v. Carnegie, 145 Pa. 324, 345. But in order to satisfy him that such error must have occurred, the verdict should not merely appear liberal; it should have that in it which, by its manifest disproportionateness, appears shocking or outrageous. See Roberts v. Swift, 1 Yeates, 209, Sommer v. Wilt, 4 S. & R. 19, and Dennis v. Barber, 6 S. & R. 420. The application of this rule necessarily implies the existence in the evidence of some definite measure whereby to ascertain the proportionateness or disproportionateness of the verdict. It is that that is lacking here, and that is often found lacking, where, as in this case, the testimony consists of widely divergent estimates of value and damages by witnesses ivhose examination discloses no common ground upon which any number of them can be classified as standing. The estimates of the difference in market value of this plaintiff’s property run all the way from $15,000 depreciation to $4,000 appreciation. The elements of damage and benefit, respectively, relied on by several witnesses are as diverse as their estimates. There is nothing which seems to be agreed upon by any considerable proportion of them, and which for that reason might be laid hold of by the court as a criterion established by the weight of the evidence in declaring that such and such a sum would be a proper allowance, and thus judging of the proportionateness or disproportionateness of the verdict and of the amount in dollars and cents by which it ought to be reduced in order to stand. Before setting aside a verdict in a case like this, where plaintiff is clearly entitled to recover, it is but fair to give him an opportunity of accepting a reduction of it; and where there is nothing in the evidence whereby to determine the proper extent of a reduction, — where the naming of any figure would be simply an arbitrary act of the court, — and where the jury has viewed the premises, — and where its verdict is not so enormous as to be shocking, — the court, being restricted to a pecuniary reduction as the only possible modification of the verdict, will go safest in refusing to disturb it.
    The rule to show cause is discharged.

      Error assigned was order discharging rule for new trial.

      William J. Rourke, city solicitor, with him Walter S. Young, for appellant.
    No paper-book filed nor appearance entered for appellee.
    March 14, 1904:
   Per Curiam,

The only assignment of error is to the refusal of the court to grant a new trial on the ground that the verdict was excessive. The authority conferred by the Act of May 20, 1891, P. L. 101, was first exercised by this court in 1897, six years after the passage of the act, in Smith v. Times Publishing Co., 178 Pa. 481, in which it was said by the present chief justice: “It is a new power, a wide departure from the policy of centuries in regard to appellate courts, and so clearly exceptional in character that no case has been presented until now, in which we have felt called upon to exercise it.” The power has not since been exercised, and it will not be except in cases where the injustice in allowing an excessive verdict to stand is so manifest as to show clear abuse of discretion by the trial judge: Schenkel v. Pittsburg, etc., Traction Co., 194 Pa. 182; Stevenson v. Ebervale Coal Co., 203 Pa. 316. This is very far from being such a case. The estimates of the witnesses as to the market value of the plaintiff’s land and as to the elements of damage and benefit resulting from the opening of a street through it were widely divergent, as is usual in cases of this class. But there was testimony which, if believed by the jury, warranted their verdict.

The judgment is affirmed.


author: Peb Cubiam,

text:
    Taylor v. General Accident Assurance Corporation, Limited, Appellant.

      Insurance — Accident insurance — Death from, fall — Evidence.
    In an action upon a policy of accident insurance it appeared that the policy provided for damages for death “caused solely and exclusively by external, violent and accidental means,” and not “directly or indirectly from disease in any form either as cause or effect.” The insured, a man about fifth-eight years of age, was observed on a moonlight night to be mounting four sandstone steps with a rubber mat lying upon the top one, at the entrance to his office. As he reached the top step he was seen to fall. Immediately afterward he was found lying at the bottom of the steps severely injured, but not unconscious. In answer to a question he said he did not know how he came to fall. With assistance he walked to his house 375 feet away. Hemorrhages from his stomach due to rupture of blood vessels resulting from the fall ensued, and the insured died within four days from the accdient. Medical testimony was to the effect that there was nothing in the insured’s condition indicating that he was afflicted with any disorder that might have contributed to the fall, or to his death. Held, (1) that the evidence was sufficient to sustain a finding that the fall was accidental; and (2) that a verdict and judgment for plaintiff should be sustained.
    Argued Feb. 29, 1904.
    Appeal, No. 12, Jan. T., 1904, by-defendant, from judgment of C. P. Berks Co., June T., 1903, No. 24, on verdict for plaintiff in case of Sarah J. Taylor v. General Accident Assurance Corporation, Limited, of Perth, Scotland.
    Before Fell, Brown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Assumpsit upon a policy of accident insurance.
    Verdict for plaintiff for $5,211.80, subject to question of law-reserved. On a rule for judgment for defendant non obstante veredicto, Endlich, J., filed the following opinion:
    The policy embodying the contract by whose'terms the rights and liabilities of the parties are fixed, provides for the payment of $5,000 to the widow of the insured upon his death “ from injuries which are the direct and proximate result of, and caused solely and exclusively by external, violent and accidental means,” and not “ directly or indirectly .... from disease in any form either as cause or effect,” The plaintiff, asserting a liability upon defendant to pay the indemnity, assumed the burden of proving every element needful to establish it. Necessarily, this involved a showing not only that the deceased fell and died from the effects of the fall, but also that his fall was- accidental and not the result of disease in any form. There can be here no doubt as to the fact of the fall or of its fatal consequences; but as to the cause of it (which becomes the material inquiry) there is, as laid down in Keefer v. Pacific Mut. Life Ins. Co., 201 Pa.. 448, at p. 455, “no presumption as •between disease and accidental cause, within the terms of the policy.” Has then the plaintiff, in her testimony, .shown that from which the jury might lawfully find that the fall was accidental ?
    It must be observed, at the outset, that there is no evidence to show just how the fall occurred — whether by tripping, by slipping, by a misstep or sudden turn causing decedent to lose his balance, or by any other specific kind of accident. From a distance of about 150 or 250 feet, on a moonlight night, the deceased was seen mounting the four sandstone steps (a rubber mat lying upon the top one) at the entrance to his office and to fall. Immediately afterwards he was found lying at the bottom of the steps on his left side, his feet towards the steps, his head on the ground, his left arm broken and the left side of his face and head cut and bruised. His office keys were subsequently discovered on the office doorstep. He was not then unconscious, but in answer to a question put to him intimated that he did not know how he came to fall. Assisted by the person who saw him fall and helped him up, he walked to his house, a distance of about 375 feet, and expressing a desire to rest sat down on the porch. There he fainted, whereupon he was carried into the house. When medical aid arrived, within about two hours after the fall, he was “ suffering from shock almost to the verge of collapse,” and shortly taken with a violent hemorrhage. This hemorrhage, and those occurring subsequently, were due to the rupture of blood vessels in the stomach resulting from the fall, and death ensued within four days from these hemorrhages, together with inflammation of the brain consequent upon concussion sustained in the fall. The medical gentlemen who attended the decedent during the last days of his life, and who were acquainted with him and had previously ministered to him professionally for insignificant ailments, unite in testifying that there was nothing in his condition indicating that he was afflicted with any disorder that might have contributed to the fall or to his death.
    Whilst, in this respect, there is a clear distinction between the present case and Keefer v. Ins. Co., supra, where the “ medical testimony was strongly in support of the theory that death resulted from uraemic poison,” (p. 455) — it may be that even this distinguishing feature, standing alone, would not be sufficient to meet the burden of proof imposed upon the plaintiff. It may be that, in order to establish the purely accidental character of the fall, the negative showing that, in his condition some hours later as observed by the physicians acquainted to the extent they were with his previous history, there was nothing apparent to which they could ascribe it, does not answer the requirement of affirmative proof of accident. On the other hand, it surely cannot be successfully contended that nothing will answer that requirement save direct proof of the precise means by which the fall was brought about. If that were the rule, no accident could ever be inferentially established, and no accident resulting in immediate death or loss of consciousness could ever become a ground of recovery under a policy like this, unless it happened in the presence of witnesses and in such manner as to impress upon them its exact details. On the contrary, it must be true that the accidental character of a fall may be proved by circumstances — just as any other fact may be so proven ; the test of the sufficiency of the circumstances adduced always being that, viewed as a whole, they reasonably exclude by their preponderating probative weight any other explanation founded in the evidence. See Phila. Trust, etc., Co. v. Phila., etc., R. R. Co., 160 Pa. 590, 594, and Wills, Circ. Evid. pp. 189-190. Nor can it be indispensable that they establish a specific one of a number of accidental causes equally reasonably suggested by the evidence. It must be enough if they fairly exclude design or disease as a cause inferable consistently with the evidence, and thus justify the conclusion that the occurrence is to be referred to the general head of accident. In this sense — where the process of elimination applied under the evidence removes the inference of design or disease and yet the proofs do not single out any particular one of a variety of fortuitous occurrences capable of accounting for the result consistently with the evidence, i. e., where it is satisfactorily shown that there must have been an accident, but, as among a number of reasonably supposable species of accident, it is unknown which occurred — it is certainly accurate to say, as has been said in Ins. Co. v. Burroughs, 69 Pa. 43, 51, Burkhard v. Ins. Co., 102 Pa. 262, 268, and Hey v. Guarantor’s Liability Indemnity Co., 181 Pa. 220, 224, that a case of death or injury proceeding from an unknown cause is a case of accidental death or injury.
    Now, here we have the case of a man about fifty-eight years of age, six feet in height and 180 pounds in weight, of moderate habits, attending to his business duties and in normal health and good spirits up to a few moments before his injury, never before afflicted with vertigo or any kindred disorder, and his subsequent condition exhibiting no evidences of any disturbing seizure or affection. He was seen to ascend the steps already described and to fall. The distance from which he was seen and the uncertain light forbade exact observation of details. His position at the bottom of the steps was not that of one suddenly stricken down by disease or helplessly collapsing. Plis consciousness had not left him, nor his will power ; for he was able to walk to his house. The blood that was upon him came from the cuts he sustained in falling. The hemorrhages came later and were the result of the fall. It may be that all this does not absolutely exclude the possibility of a seizure of some kind as the cause of the fall; but it certainly goes to the extent of reasonably excluding both design and disease as an explanation of the fall founded in the evidence by making it vastly more probable that the cause of it was one of those innumerable accidents which, common experience teaches, may intervene with disastrous effect between the raising of a foot and the putting down of it. Whether the precise thing that happened was that the deceased stubbed his toe against the top step or the mat lying upon it, or slipped, or by- a sudden turn lost his balance, or whether1 several of these contingencies combined to bring him to fall, may be matter of uncertainty. Were it material to determine which it was, the jury could not be permitted to guess at it. But there is no occasion for guessing at it; for so long as the evideuce fairly points to.one or more of these things as the probable cause of the fall, rather than to an internal disorder — so long as, to quote Merritt v. Preferred Masonic Mut. Acct. Assn. (Mich.), 57 N. W. Rep. 169, relied on by defendant’s counsel, there is “ some evidence tending to show that death resulted from accident rather than design or natural causes,” a prima facie ease is made out, and the requirement of affirmative proof of an accident is satisfied. Nor is the inference of accident, supported as it here is, obnoxious to the criticism that it is an inference based upon a mere presumption. Such was the objection to the inference of accidental injury in Keefer v. Ins. Co., supra., in the absence of any direct proof as to the “ fact, the cause or the effect ” of the alleged fall: p. 455. In other words, there was there no direct proof of the fall, nor of course of any circumstances attending it. It was contended that the fact of a fall might be inferred from the injury and the fact that an accident caused the fall presumed from the inference that there was a fall. In this ease there is direct proof of the fall and of its effect, and the inference of the accidental character of the fall is sought to be based upon a view of all the proven circumstances preceding, attending and following it. One of those circumstances, to be sure, is the alleged fact of the deceased’s health at the time, the absence of any internal disorder likely to contribute to the fall. That very important fact must rest upon the evidence as to his condition before and after the fall. But it springs from that evidence, if believed by a jury, not as a mere presumption, but as a proven fact. In the language of Mr. Justice Dean, in Lerch v. Bard, 162 Pa. 307, at p. 315, here peculiarly applicable, it “ is not' a mere presumption in any other sense than that all facts, not mathematically demonstrable, are more or less presumptions ; it is a fact proven by every circumstance indicative of ” it. It was competent, therefore, for the jury, having found it as a fact, to base upon it the inference that the cause of the fall was accidental. Nor is its availability for that purpose necessarily impaired by the decedent’s intimation that he did not know how he came to fall. That this admission, standing alone, is consistent with the theory of a sudden attack of vertigo or something of that sort as the cause of the fall cannot be questioned. But neither is it inconsistent with an inference of accidental falling, especially when looked at in connection with other relevant facts already referred to. Indeed, it seems most natural that a man who, while ascending a short and thoroughly familiar flight of steps as one in normal health and spirits would be apt to ascend it, was suddenly overthrown by some trivial accident, and who in falling with the momentum of his height and weight sustained the injuries and the shock the deceased sustained, would be unable to tell just how the thing occurred. It happens sometimes in cases of severe personal injuries that the injured party undertakes to narrate in minute detail the precise manner in which the accident took place. But a careful analysis of his narrative and a comparison of it with the established or conceded facts of the case will perhaps in most of these instances show that what he is telling is the theory of the occurrence which he has subsequently reasoned out and which he honestly mistakes for actual recollection.
    Whát has been said leads to the conclusion that plaintiff’s right under the evidence to recover in this case cannot, as a matter of law, be negatived, and therefore that the verdict of the jury in her favor must stand.
    The rule to show cause is discharged.

      Error assigned was the order discharging the rule.

      C. TL Ruhl, with him Innes Williams, for appellant,
    cited: Sharpe v. Commercial Travelers’ Mut. Accident Assn., 37 N. E. Repr. 353; Carnes v. Iowa Traveling Men’s Assn., 76 N. W. Repr. 683; Manufacturers’ Accident Indemnity Co. v. Dorgan, 58 Fed. Repr. 945.

      Frederick W. Nicolls and Chester N. Farr, Jr., for appellee, were not heard.
    March 14, 1904:
   Peb Cubiam,

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