text:
    Bomgardner v. Blatt, Appellant.

      Executors and administrators — Distribution—Overpayment to distributee — Mistake.
    Where an executor voluntarily, but by mistake, makes an overpayment to a distributee, he cannot thereafter recover from the distributee the excess paid, if it appears that the mistake did not arise from any statement or representation of the distributee, or from any artifice on his part, and that there was no promise or agreement on the part of the distributee to repay.
    Argued Oct. 29, 1907.
    Appeal, No. 94, Oct. T., 1907, by defendant, from judgment of C. P. Lebanon Co., Dec. T., 1904, No. 80, on verdict for plaintiff in case óf Aaron G. Bomgardner, Executor of the last will and testament of Julian Blatt, deceased, v. Frank W. Blatt.
    February 28, 1908:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Assumpsit to recover an overpayment by an executor. Before Ehrgood, P. J.
    The facts aré stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $182.50. Defendant appealed.

      Error assigned among others was in submitting the case to the jury.

      Harry J. Schools, for appellant.
    — When an executor voluntarily makes distribution of his decedent’s estate, without an order or decree of court, and without taking a refunding bond or other agreement to repay, he cannot recover from an heir and distributee any overpayment which he may have made, where the payee, in receiving the money, acted in good faith, accepting the executor’s statement as to the amount due him, without question or inquiry, and, at the request of the executor, signed a release to him: Montgomery’s App., 92 Pa. 202; Miller v. Hulme, 126 Pa. 277; Carson v. M’Farland, 2 Rawle, 118; Natchter v. Natcher, 47 Pa. 496; Edgar v. Shields, 1 Grant, 361; Hinkle v. Eichelberger, 2 Pa. 483.

      E. E. McCurdy, of Gobin & McCurdy, for appellee.
    — Plaintiff was entitled to recover the amount overpaid: Lyle v. Siler, 103 N. Car. 261; Byrnes v. Martin, 67 Mich. 399 (34 N. W. Repr. 688); Kelly v. Solari, 9 M. & W. 54; Kerr v. Ames, 39 Legal Int. 392; Christman v. Siegfried, 5 W. & S. 400; Wilson’s Est., 43 Legal Int. 14Q; McGeary’s Est., 36 Pitts. L. J. 152; D’Utricht v. Melchor, 1 Dallas, 428; Com v. Lancaster County Mut. Live Stock, etc., Ins. Co., 1 Dauphin, 210.
   Opinion by

Henderson, J.,

The plaintiff was executor of the will of Julian Blatt and in that capacity filed an account showing a balance of $529.56 in his hands for distribution among the heirs, which account was finally confirmed June 15, 1901. A short time thereafter the accountant requested the defendant, who was a son and heir of the decedent, to meet him at the office of a justice of the peace living in the neighborhood to receive the amount due him as such heir, and on June 28, 1901, the defendant met the plaintiff in response to the latter’s notice.. The plaintiff exhibited a receipt and release which he had theretofore prepared, according to which there was due to the defendant $254.50, and on the representation of the plaintiff that that was the correct amount, the defendant signed the receipt and release and received the money. More than two years afterward the children of Kate Yunger, a daughter of the decedent, procured the appointment of an auditor to distribute the fund in the hands of the executor. According to the distribution made by the auditor the defendant was entitled to $117 from the estate. The discrepancy between the amount given to the defendant by the accountant in 1901 and that found to be due by the auditor in 1904 arose out of the fact that the decedent had a book known as a family book in which-she caused to be charged advancements made by her to her children from time to time. This book was kept by the plaintiff, a son-in-law of the decedent. Among the entries in the book, made by the plaintiff, was a charge against Kate Yunger of $225. For this amount, as was afterward alleged before the auditor, William Yunger, husband of Kate Yunger, gave Mrs. Blatt his note, and it seems to have been determined by the auditor, although the auditor’s report is not presented, that this sum of $225 was not properly chargeable against Kate Yunger, and that, therefore, her children were entitled to participate to that amount in the distribution of their grandmother’s estate. From this finding of the auditor it resulted that the defendant had received $137.40 more than he was entitled to, and the plaintiff seeks to recover this excess. - It is conceded that the plaintiff made up the statement set forth in the receipt signed by the defendant; that the defendant knew nothing about the state of the account; that he made no inquiry with reference thereto and .accepted the representations of the accountant as true. There was no evidence that he had any knowledge of the contents of the family book or that he even knew of its existence. He accepted what was offered him without question. The accountant was assisted in making up the statement, according to which his distribution was made, by a friend whose services he obtained to make the calculation, and this statement was afterward submitted to the plaintiff’s counsel. They presumably were guided by information furnished by the plaintiff, but the fact that their services were had shows that the accountant was not taken by surprise. That the payment to the defendant was voluntary is not disputed, nor could it be under the evidence, and we consider it clear, in the light of the authorities in this state, that an action cannot be maintained to recover the overpayment. The mistake did not arise from any statement or representation of the defendant, nor from any artifice on his part. An implied promise to repay does not arise from the mere fact that the party has received money which he ought to repay. There must be some fraud or constraint to support such an action. Such was the statement of the law by Chief Justice Gibson in Hinkle v. Eichelberger, 2 Pa. 483: “Though the action for money had is a liberal one, and lies, it is said, wherever a party has received money which he is bound by natural justice to refund, it has never been extended to money received without unfair practice or deceit, though the receiver could not have recovered it by law.” To the same effect is Natcher v. Natcher, 47 Pa. 496, in which Judge Thompson said: “A moment’s reflection will induce the inquiry, how can money voluntarily paid be recovered back? Upon what can the implied promise to pay back be rested, against a free and voluntary parting with the money, without any reservation that it is ever to be returned? The latter excludes the former. The act overthrows all presumptions inconsistent with it, and hence the rule that money voluntarily paid, that is, paid without fraud or constraint, can never be recovered back.” Carson v. McFarland, 2 Rawle, 118, is to the same effect. Edgar v. Shields, 1 Grant, 361, was a case where the administrator of the decedent paid to the mother of the deceased as his heir at law the balance in his hands after settlement of his estate. A creditor filed exceptions to the account, which exceptions were sustained, and on distribution the fund in the hands of the administrator was awarded to him. In an action brought by the administrator to recover from the mother the amount paid to her, it was held that the payment was a voluntary payment, and that although she was not entitled at law to the fund it could not be recovered from her in the absence of an express promise to pay or unfair practice or deceit in obtaining it. This case was followed by Montgomery’s Appeal, 92 Pa. 202, in which an attempt was made to recover, by set-off in another proceeding, an amount paid to the widow of the decedent, largely in excess of her distributive sharé. The Supreme Court refused to allow this to be done, holding that the payment was not only barred by the statute of limitations, but was voluntary, and that in the absence of a refunding bond or an agreement to repay the money was not recoverable. It was there said that “when an administrator pays out money, he is presumed to know the condition of the estate. The assets are in his hands, and he is familiar with their amount and value. He ought to know, and is chargeable with knowledge, of the amount of claims against the estate when he makes a payment on account of a distributive share.” These comments are applicable in the case for our determination in view of the fact that the decedent made her home with the accountant and that he was her bookkeeper and apparently familiar to a considerable degree, at least, with her business transactions. Miller v. Hulme, 126 Pa. 277, was also a case of an overpayment to a distributee. It was there decided that the overpayment to the heir was voluntary and he was not legally bound to refund. The court recognized that the distributee had received an amount in excess of that to which, in good conscience, he was entitled, and that there was perhaps a moral obligation to repay, but held that as it did not appear in the proofs that there was an agreement so to do, the action could not be maintained. It will be noted that in each of the three cases last cited the payments were to distributees. In Ferguson v. Yard, 164 Pa. 586, the court said: “A voluntary payment by an administrator to a distributee cannot be recovered back in the absence of fraud or an agreement to refund in case it should prove to be an overpayment or it should be. needed to satisfy after-discovered claims against the estate.” In Steel v. Arnold, 8 W. N. C. 249, the defendant undertook to, set off an overpayment by her as executor to the plaintiffs as creditors of her husband’s estate, of whose will she was executor. This the court refused to permit on the ground that such payment was voluntary and that the creditors, supposing at the time the payment was made that they were entitled to it, were not bound to repay.

The conclusion of the learned judge of the court below is not in harmony with' the doctrine declared in the foregoing cases, but we do not find any facts in the case presented which distinguish it and bring it under the operation of a different rule. Distinctions which do not distinguish are confusing to the legal mind and tend to-relax well-established doctrines in aid of desirable judgments. The plaintiff sought the defendant and gave to him the statement in. writing as to the condition of the account and the amount due him, which the defendant acquiesced in without inquiry or criticism, and the plaintiff must bear the loss occasioned by his own mistake.

The judgment is reversed.


source: Caselaw Access Project

author: Orlad y, J.,

license: Public Domain

text:
    Commonwealth ex rel. v. Light, Appellant.

      Constitutional law — ^Title of act — Vital statistics — Payment of local registrar.

    The Act of May 1, 1905, P. L. 330, entitled “An Act to provide for the immediate registration of all births and. deaths ■ throughout the Commonwealth of Pennsylvania,” etc., is not open to the charge of unconstitutionality as to its twentieth section, on the ground that the title of the act gives no notice of and shows no intent to impose any liability for the fees of the local registrar upon the county.
    Where prior legislation imposes upon counties a duty or burden, a subsequent act upon such subject need not expressly state in its title that the burden of paying for the same is to be borne by the county.

      February 28, 1908:
    Argued Oct. 31, 1907.
    Appeal, No. 165, Oct. T., 1907, by defendants, from order of C. P. Lebanon Co., June T., 1907, awarding mandamus in case of Commonwealth ex rel. Edwin L. Kreider v. John B. Light, William Gassert and Samuel Royer, County Commissioners.
    Before Rice P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    . Petition for mandamus.
    The opinion of the Superior Court states the case.

      Error assigned was order awarding the mandamus.

      C. H. Killinger, with him William W. Walter, for appellants.
    —The provisions of sec; 20, charging the payment of the registrar’s services on the county funds is unconstitutional and void, there being nothing in the title of the act indicating or calling attention to the liability thus created: Quinn v. Cumberland County, 162 Pa. 55; House of Refuge v. Luzerne County, 215 Pa. 429; Com. v. Samuel, 163 Pa. 283; Dailey v. Potter County, 203 Pa. 593; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120; Phcenixville Road, 109 Pa. 44.

      Walter C. Graeff, for appellee,
    cited: Hays v. Cumberland County, 5 Pa. Superior Ct. 159; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120; Com. v. Sellers, 130 Pa. 32; Com. v. Croop, 12 Luz. Leg. Reg. Rep. 233; Com. v. Martin, 170 Pa. 118.
   Opinion by

Orlad y, J.,

Edwin L. Kreider was appointed a local registrar of Lebanon county by the state board of health and vital statistics, under the provisions of the Act approved May 1,1905, P. L. 330, and after duly qualified performed the duties incident .to that office for the year 1906, and made returns with certificates to the state registrar, who upon approval thereof issued a certificate directed to the treasurer of Lebanon county, certifying that Kreider had made his return to the office of state treasurer during the year 1906, of 242 certificates of death and 373 certificates of birth, for which he was entitled to be paid under the provisions of section 20 of the act of 1905 the sum of $153.75, by the treasurer of Lebanon county.

This certificate was presented to the county commissioners, and they were requested to draw their warrant on the county treasurer for .the amount, which they refused to do, and subsequently the appellee presented his petition as relator to the court of common pleas of Lebanon county for a writ of mandamus to compel the appellants to issue their warrant, etc. An answer was filed denying the liability of the county for the payment of such fees, for the reason that section 20 of the said act was inoperative and unconstitutional, because the title of the act gives no notice of and shows no intent to impose any liability for such fees upon the county. The relator demurred, and the court after argument decided the case upon the demurrer, awarding a peremptory writ of mandamus from which judgment the county commissioners have taken this appeal, the only question raised before us being the validity of the twentieth section of the act of 1905. An examination of this act discloses that it is a codification of preceding legislation which had its inception in the Act passed April 14,1851, P. L. (1852), 2, the preamble of which is as follows: "Whereas from the death of witnesses and from other causes it has been found difficult to prove the marriage, birth or death of persons whereby the rights of many have been sacrificed and great wrongs have been done; and whereas important truths deeply affecting the physical welfare of mankind are to be drawn from the number of marriages, births or deaths that during a term of years may be contracted or may occur within the limits of an extensive commonwealth; "and the same concern for the general safety and protection of the people of the commonwealth during the subsequent period of over fifty years is duly evidenced. The appointment of officials to secure the necessary information and to make returns that would be available as public records has been changed by several acts of assembly, but in every instance the fixed charges and expenses have been uniformly imposed upon the county in which the local work was done and the services rendered. Under the act of 1851, in order to preserve in permanent form the record, the services required by that act were rendered by the register of wills in the several counties, who was compensated therefor by certain scheduled charges “which shall be paid to him on his demand by the Treasurer of the proper county.” Under the Act of June 6. 1893, P. L. 340, the duty devolved on the assessors of the townships, boroughs and wards within the commonwealth, and on the clerk of the orphans’ court; and the fees allowed for services rendered pursuant to that act were “ to be paid out of the county funds upon a certificate issued under the hand and seal of office of said clerk.” In'order to secure uniformity, precision and greater dispatch in furthering the purposes of this legislation the Act of May 1, 1905, P.. L. 330 was passed, and the contention is urged that the twentieth section which provides that “all amounts payable to Registrars under provisions of this section shall be 'paid by the Treasurer of the County in ‘which the registration districts are located upon certification by the Staté ■ Registrar who-shall annually certify to the Treasurers of the several counties the number of births and deaths registered with the-names of the' local Registrars and the amounts due each at the rates fixed therein,” is inoperative and void for the reason that the title, to the act does not indicate any intent to create a charge on the county funds for the services of the local registrars.' It is true there is nothing in the title to the act specifically directing that the county shall be liable for the services rendered by these officials. It is as follows: “an act to provide for the immediate registration of all births and deaths throughout the-commonwealth of Pennsylvania by means of certificates of births and deaths, and burial and removal permits; requiring’ prompt returns to the central bureau of Vital Statistics, at the capital of the State as required to be established by the State. Board of Health; and to insure the thorough organization and efficiency of the registration of vital statistics throughout the. State, as provided in section 7 of an act to establish a State Board of Health for the better protection of life and healths and to prevent the spread of contagious and infectious diseases in this commonwealth;” approved June 3, 1885, and making an appropriation for establishing and maintaining such a bureau, and providing certain penalties. ;

Prior legislation on this subject having imposed the liability for such services on the county, when the act of 1905 became operative the title at least directed attention to either an imposition of liability on the county for services rendered under it, or a relief from a liability that had been imposed by former legislation on the same subject. The provisions contained in the body of the act are but details of the general purpose expressed in the title. The act shows on its face that the subject of legislation is not new, and if it be contended that the title does not specifically direct how the costs of enforcing it are to be paid, it could with equal force be urged that it does not indicate any change in the then existing liability of the counties for similar services. There is not a single section or a clause of any section in the act that is not clearly germane to the subject expressed in .its title, and the burden imposed by prior legislation on the subject is not shifted: House of Refuge v. Luzerne County, 215 Pa. 429. We have held that where prior legislation imposes upon counties a duty or burden, a subsequent act upon such subject need not expressly state in its title that the burden of paying for the same is to be borne by the county: Hays v. Cumberland County, 5 Pa. Superior Ct. 159; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120. The title is not in any sense misleading. It directs attention to the methods by which the purposes of the legislation are to be carried into effect as much as to the departments to whose control the general project is submitted, and would at least put on inquiry anyone interested in the subject-matter referred to in the modifying, amplifying and dealing with former legislation that related thereto, for the reason that all laws' and parts of laws inconsistent with the provisions of that act of 1905 have been repealed: Borough of Millvale v. Evergreen Railway Company, 131 Pa. 1; Bridgewater Borough v. Big Beaver Bridge Company, 210 Pa. 105; Commonwealth v. Clark, 3 Pa. Superior Ct. 141; Commonwealth v. Curry, 4 Pa. Superior Ct. 356. The commissioners of the county have nothing to do with fixing the amount of the compensation of the registrar, which the act provides shall be paid by the county treasurer by warrant from the county commissioners: Commonwealth v. Martin, 170 Pa. 118. The certificate fixes the amount due and with that the county commissioners have no concern; the treasurer is required to pay the amount of the certificate in accordance with the provisions of the act of 1905 — viz.: on the warrant of the county commissioners — the judgment is affirmed.


author: Morrison, J.,

text:
    Alloway v. General Accident Insurance Company, Appellant.

      Insurance — Accident insurance — Unnecessary exposure to risk — Powder explosion.

    Where an accident insurance policy cut down the liability of an insurance company if injuries shall result from an unnecessary exposure to obvious danger, and it appears that the insured was described as a “ clerk in a store, not doing porter’s work,’’ and it also appears that the store was a general store in a mining region, and that one of the clerk’s duties was to go to a powder house about one and' one-fourth miles away from the store, and deliver the powder to customers, the insurance company has no standing to claim a reduction in liability because the insured was killed by an explosion at the powder house while in the ordinary performance of his duties. In such a case the mere handling of explosives either in the store or in the powder house was not an unnecessary exposure to obvious danger within the meaning of the policy.
    Argued Oct. 31, 1907.
    Appeal, No. 175, Oct. T., 1907, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1907, No. 15, on verdict for plaintiff in case of Amanda Alloway v. The General Accident Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance. Before Woods, P. J.
    At the trial the jury returned a verdict for plaintiff for $504.20 subject to point of law reserved.
    Woods, P. J., subsequently filed the following opinion:
    The General Accident Insurance Company of Philadelphia issued a policy to Edmund A. Alloway, of Robertsdale, Huntingdon county, Pennsylvania, and numbered 320,522. Said policy provides for the payment of a certain sum of money to' the insured in case of his meeting with an accident and sustaining injuries thereby, and in case of death resulting by reason of said injuries, then said policy provides for the payment, by said defendant company, of a certain specified sum to be paid to the wife of the insured, Amanda Alloway, the plaintiff in this suit. Edmund A. Alloway, the person named in the policy, was injured in an accident and died by reason of injuries he received in said accident. The injuries received, from which death occurred,, were due to the explosion of powdér which was kept and stored in a small shanty or building about a mile and a half away from Robertsdale where the insured was employed as a clerk in the store of Jesse O. McClain, and the testimony shows that the said powder house' was used in connection with the said store and that Edmund A. Alloway was sent by the proprietor of the store to furnish some miners with powder, and while'there an explosion took place and the insured was so badly burned that he died in a few hours. We cannot learn from the evidence just how the accident occurred. The defendant .company claim that under the provisions contained in said policy, they are. not liable for the full amount named in the policy, and the plaintiff brought this suit to recover the full face of the policy. Before the trial of the case the defendant company tendered to plaintiff the sum of $80.00 with accrued interest and costs which was refused; this tender was again renewed when the case was called for trial and again refused, whereupon a jury was called and the case was proceeded with. After the plaintiff had offeréd evidence the defendant company then proceeded by offering the proofs of death for the purpose of showing fully the manner of the death of the deceased; the schedule of warranties indorsed on the back of the policy, and a written agreement as to a tender having been made and rejected. This was the extent of defendant’s testimony and the evidence was closed’. The counsel for the defendant company submitted the following point for the consideration of the court:

      First. The insured, in his application for a policy issued by the defendant company, set forth that his business was that of a clerk in a store, and that his duties were general duties in a store and not doing porter’s work, and the policy issued to him by the defendant company contains the following provision-: “In the event of injuries, fatal or otherwise, resulting from unnecessary exposure to obvious risks of injury or obvious danger,” and it appearing from the plaintiff’s own testimony that the deceased lost his life by the explosion of a powder house about a mile or more distant from the store in which he - was employed as a clerk, the plaintiff cannot recover any more than one-fifth of the amount of the policy, with interest from the date of his death to March 29, 1907, the date when the' tender was made of the sum of $80.00, with interest from July -23, 1906, to March 29, 1907.
    The court not being satisfied reserved the point and directed the jury to render a verdict .in .favor of plaintiff subject to the opinion of the court upon the point of law reserved.
    The defendant company does not deny its liability but contends .that under the terms and conditions contained in said policy they are only liable for one-fifth of the amount provided for in said policy. The policy provides for certain conditions and restrictions as to employment and character of work to be engaged in by the insured. The fourth condition or limitation reads in part as follows: “In event of injuries, fatal or otherwise, .... resulting from unnecessary exposure to obvious risks of injury or obvious.danger .... the limit of the company’s liability shall be one-fifth of the amount which would otherwise be payable under this policy, anything herein to the contrary notwithstanding.” Under this clause of the policy the counsel for defendant company contends that under the evidence in this case of the plaintiff herself, she would only be entitled to recover $80.00 with costs and interest up to the -time the tender was made, being the one-fifth of the face of -the policy. The argument of the counsel is,that powder itself arid the handling of it is dangerous and known to be dangerous .and that the insured having exposed himself to the risk of being injured and that the danger, following the handling of the powder, was obvious, he thereby brought himself within the condition attached to said policy above cited and that the plaintiff is therefore only entitled to recover the one-fifth of the amount. The policy does not prohibit the handling of powder. If the insured had gone to the powder house with a lighted cigar ór pipe or was in the company of one who had a lighted cigar or pipe then in that case he would have exposed himself to an “obvious risk of injury or obvious danger” and that risk would have been unnecessary exposure and under such circumstances the plaintiff could not recover, but there is no evidence that these circumstances caused the accident. The evidence shows that the deceased was sent to the powder house by his employer and that he was performing his duties as clerk and there is no evidence that he did anything to bring about the accident which caused his death. Surely the fact that powder being recognized as a dangerous commodity, is not of itself a bar to recovery when an accident occurs by reason of an explosion, not the result of the act of the insured. There is no evidence in this case to show that the deceased acted in a careless or reckless manner. The evidence shows that the store, in which the deceased was employed as a clerk at the time the policy was issued, was located in a mining district and that all kinds of mine supplies were kept, such as “dry goods, notions, hardware, powder, dynamite, and oil, miners’ oil, everything that is needed in the line of mining,” and that he had been sent by his employer to furnish the miners with powder to be used in the coal mines. Is a clerk in a hardware store in a mining town prohibited from handling oil, or cartridges or other necessary articles because it is known that when these things come in contact with heat or fire they will explode and cause damage? We think not. It is incumbent on the person handling these necessary articles to use care. “If a man acts so recklessly and carelessly that he shows an utter disregard of a known danger, then he may be said to have exposed himself voluntarily to danger:” DeLoy v. Travelers’ Insurance Co., 171 Pa. 1. There is no contention on the part of defendant company that the deceased had changed his occupation but, on the other hand, the evidence shows that the deceased lost his life while engaged as a clerk in the same store in which he was engaged when the policy was issued to him. There is another requisite contained in said clause of the policy and that is that the injury must be the result of an “unnecessary exposure to obvious risks of injury or obvious danger.” The accident occurred while he was performing a duty, in other words, the deceased was in the line of duty; doing what his employer directed him to do and can it be said he was unnecessarily exposing himself when he was selling powder to be used in the regular course of mining and the powder exploded without any act on his part? As we have already said powder itself becomes dangerous when it comes in contact with some other substance or element and in the absence of evidence to show that the deceased knew of the existence of any other substance or element by which the powder would explode it cannot be said that he unnecessarily exposed himself to an obvious danger. That element which made powder dangerous is wanting in the evidence and hence it must be said to have been unknown to the deceased and the accident did not happen by any act of his. Judge Mercer has said in Burkhard v. Travellers’ Insurance Co., 102 Pa. 262, “accident is defined by Worcester to be an event proceeding from an unknown cause or happening without the design of the agent; an unforeseen event; incident; casualty; chance; and by Webster, an event that takes place without one’s forethought or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause and therefore not expected; chance; casualty; contingency.” From the evidence in this case we are led to the conclusion that the death of Edmund A. Alloway was caused by an accident arising from a substance or element coming in contact with powder, the existing presence of that substance or element having been unknown to him and that the injury was not brought about by any act or carelessness on his part and we think that there was not such an unnecessary exposure to “obvious risks of injury or obvious danger” as to fairly bring the cob-duct or act of the insured within the meaning of the clause contained in the point submitted for our consideration. We base our conclusion on the cases already cited: DeLoy v. Travelers’ Insurance Co., 171 Pa. 1, and Burkhard v. Travellers Insurance Co., 102 Pa. 262. Nor do we think our finding conflicts with the law as laid down in the last case decided by. the Supreme Court in Rebman v. General Acc. Ins. Co., 217 Pa. 518, where it is decided that the exposure must be “intentional and unnecessary.”
    ■ In the case last cited the words used in the policy are as follows, to wit: “Nor does this contract extend to nor insure against death or any kind of disablement resulting wholly or partly, directly or indirectly from. voluntary exposure to unnecessary danger.” “The certificate holder is required to use all- due diligence, for personal safety and protection.” The policy, which is before us for consideration, does not contain the words “voluntary exposure,” nor that the “holder is required to use all due diligence.” While it is presumed a holder of a policy is not to voluntarily expose himself and that he is expected to “use all due diligence,” still if a person acts carefully and prudently in the face of known danger it cannot be said that he unnecessarily exposed himself to an obvious risk or to obvious danger. . ,
    As was held in the case of Rebman v. General Acc. Ins. Co., 217. Pa. 518: “The clause of the policy must be held to apply whenever the insured is injured in a manner that should have been anticipated while voluntarily doing something that ordinary prudence would forbid.” In the case at bar the deceased could not anticipate an explosion unless something came in contact with the powder which would cause it to explode and there was.no evidence to show that he failed to use ordinary .prudence or that he did anything to cause the explosion.
    . And nqw., August 12, 1907, the point reserved by us for our •consideration is refused and it is ordered and directed that the judgment be entered upon the verdict as rendered by the jury to which decree the defendant excepts and bill sealed..
    ■ Errór assigned was in entering judgment for the plaintiff bn the ’verdict.

      H. H, Waite, for appellant.

      February 28, 1908:

      W. M. Henderson, for appellee.
   Opinion by

Morrison, J.,

The action was on a policy of insurance issued by the defendant to Edmund A. Alloway, insuring him against injury resulting from accident. In his application the insured set .forth that his occupation was that of a “clerk in a store, not •doing porter’s work.” The policy was dated August 29, 1903. It contained the following: “In event of injuries, fatal or otherwise, resulting from an unnecessary exposure to obvious risks of injury or obvious risks of danger .... in such case the limit of the company’s liability shall be one-fifth of the amount which would otherwise be payable under this policy.” The policy also provides: “If the insured is injured after having changed his occupation or duties to one classified by this company as more hazardous than that herein stated, or is injured while doing any act or thing pertaining to any more hazardous occupation, the company’s liability shall be only for such proportion of the principal sum or other indemnity as the premium paid by him will purchase at the rate fixed by the company.”

The policy was for the sum of $400; the judgment is for the amount of the policy, with interest. The contention • of the learned counsel for defendant is that because the insured ■lost his life on July 23, 1906, by reason of an explosion of powder in a house about one and one-fourth miles away from the store where he was employed, he was killed from unnecessary exposure to obvious risks of injury or obvious danger so •that the liability of the company was limited to the one-fifth of the amount of the policy, under the clause first above quoted. .It is not contended that the insured changed his occupation to a more hazardous one; he was a clerk' in a store, and continued in this same employment to his death, and under the . undisputed evidence it must be conceded that one of his duties as such clerk was, when so directed by his employer, to go to the powder house and deliver powder to customers of his employer.

-.The policy did not prohibit the insured from handling powder or anything else kept in a general store in a mining region. The court below was of the opinion that the injuries to the insured did not result from unnecessary exposure to obvious risks of injury or obvious danger, and, therefore, entered judgment against the defendant for the full amount of the policy, with interest.

The real question, then, is: can this ruling be sustained? We think it has been fully vindicated by the opinion of the learned court below and the authorities therein cited. That opinion is so full and clear that it seems unnecessary for us to attempt to add anything to it. We are not convinced that under the policy the insured was prohibited from properly and reasonably handling explosives, or anything else usually sold in a general store. He described his occupation in his application as a “clerk;” general duties in a store, not doing porter’s work.

If he had sold and delivered powder in the store, it ought not to be held that he was unnecessarily exposing himself to obvious risks of injury or obvious danger. It would hardly be possible to convince experienced and prudent persons familiar with powder, that weighing it out and delivering it to customers, would be unnecessary exposure to obvious risks or obvious danger. If powder is carefully handled, it is not obvious that it will become dangerous. It is an article that is being constantly handled by many men who consider themselves careful and prudent. If the insured could have sold and delivered powder in the store, without violating .the terms of the policy, it is not apparent why he could not go to the powder house and sell and deliver powder under the direction of his employer and in the line of his duty.

' Unless the insured knew of or saw something at the powder house which might explode the powder, how can it be said that he exposed himself to obvious risk or obvious danger? There is no evidence of how the explosion happened, nor is there a particle of evidence that anything came to the attention or knowledge of the insured to warn him of obvious danger while he was at the powder house, or at any time before.

The able argument of the learned counsel for the defendant has not convinced us that there is any serious error in. the record and, therefore, the assignments of error are all dismissed.

Judgment affirmed.


author: Per Curiam,

text:
    Lampeter Township Road.

      Road, Law — Viewers—Petitioners—Identity of names.

    While identity of name indicates identity of person the inference flowing therefrom is at most a rebuttable inference of fact, not a conclusive presumption of law. Hence, if the question whether two road viewers are the same persons as two petitioners for the road is to be raised at all, it ought to be raised by exceptions in the court below before the absolute confirmation of the report so that the petitioners for the road may have opportunity to meet it.
    An objection that an order of road views was altered after it left the hands of the clerk is one that should be made in the court below before the absolute confirmation of the report. '
    Where a report of viewers shows on its face that the viewers met in pursuance of notice at a time and place indicated, before the end of the term, it is immaterial that the report was filed two days after the beginning of the next term, where a rule of court provides that viewers shall make their report on or before the third day of the next sessions.
    Argued Nov. 12, 1907.
    Appeal, No. 13, Oct. T., 1907, by • Supervisors of West Lampeter Township, from order of Q. S. Lancaster Co., confirming report of viewers.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition to have final order of confirmation opened.
    The following exceptions, inter alia, were filed:
    1. Because two of the viewers in the above case were petitioners for the road and were, therefore, disqualified as viewers, and the court had no jurisdiction to confirm their report.
    2. Because the order to the viewers- in the above case was altered by the attorney for the petitioners as follows, viz.: The word all was changed to part and after West Lampeter was.added, “and part in the City of Lancaster,” making the said order read “part in the Township of West Lampeter and part in the City of Lancaster,” instead of “all in the Township of West Lampeter” as originally. The order, as acted upon by the viewers, was, therefore, not the order of the court and they were without jurisdiction to confirm it.
    February 28, 1908:
    3. Because the report shows that the meeting of the viewers was not held until two days after the commencement of the term to which it was returnable, and the court had, therefore no jurisdiction to confirm it.
    ' Error assigned was in confirming the report of the viewers.
    . H. Edgar Sherts, for appellant.

      H. M. Houser and S. V. Hosterman, for appellee,
    presented no printed brief.
   Per Curiam,

- Those opposed to the laying out of this road had two opportunities in the court below to raise objections involving questions of fact. The first was before the confirmation absolute of the report and the second after the confirmation absolute was struck off and additional time given to file exceptions. As they availed themselves of neither of these opportunities there is additional reason for holding that they have no standing on appeal to complain of irregularities in the proceedings not shown by the record in the strictest sense of that term. Neither of the three reasons assigned in support of the single specification of error relates to an irregularity of that character.

I. While identity of name indicates identity of person the inference flowing therefrom is at most a rebuttable inference of fact, not a conclusive presumption of law. Hence, if the question whether two of the viewers were petitioners for the road.was to be raised at all it ought to have been raised by exception in the court below before the absolute confirmation of thé report so that the petitioners for the road would have an opportunity to meet it. After the expiration of the term at which the report was confirmed absolutely without objection a legal presumption arose that all of the viewers were qualified, to act, which is not repelled by the fact that the names of two of them are the same as the names of two of the petitioners.

2. The objection that the order of view was altered after it left the hands of the clerk involves also an allegation of fact which is not established by an inspection of the record. True, it was stated in the answer to the petition to strike off the confirmation that “whatever erasures and insertions which were made in said order were made by H. M. Houser, attorney for the petitioners for the road, before the order was given to’ the viewers, before the view, before the report and before confirmation.” But this admission is not inconsistent with the presumption that the order is in the same condition as when it left the hands of the clerk. As the objectors to the road had full opportunity, as above stated, to show that the erasures and interlineations were made afterwards and did not avail themselves of it, the presumption above referred to must prevail.

3. The third objection is, as stated by counsel, that the report shows that the meeting of the viewers was not held until two days after the commencement of the term to which it was returnable. According to the authorities this objection would be good if it were sustained by the record. But it appears by the order to view that there is a standing rule of the court requiring viewers to make report of their proceedings on or before the third day of the next sessions. In this case the term at which their report was to be made began on April 17, 1905, and the report was filed on April 19, strictly in accordance with the rule. The viewers, in concluding their report with the statement that it was submitted on April 19, evidently did not mean that the order had not been executed until after the term had begun, because in a preceding part of the report it is stated that the view was held on the day and at the place set forth in the annexed notice and this notice shows that that day was April 14. The facts as disclosed by the record do not bring the case within the rule established by the authorities cited by the appellants’ counsel.

The order is affirmed.


author: Head, J.,

text:
    Cohn v. Levinson, Appellant.

      Contract — Sale—Delivery to express company.

    Where a purchaser of wearing apparel directs the seller to deliver it to an express company for transportation to the purchaser’s home, and the seller complies with the direction, the purchaser cannot resist payment for the apparel on the evidence alone of the express company’s agent at the place of the purchaser’s residence, that when the package was received, the paper wrapping had been torn or destroyed in part, and the contents had become soiled and damaged. In such a case the mere fact that the package arrived in bad condition raised no presumption of failure of duty on the part of the seller.
    Argued Oct. 29, 1907.
    Appeal, No. 18, Oct. T., 1907, by defendant, from judgment of O. P. Clearfield Co., May T., 1906, No. 383, on verdict for plaintiff in case of Sol Cohn v. J. C. Levinson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    At the trial the defendant made the following offer:
    Mr. Wilson: We propose to prove by this witness, first, that he is the agent of the Adams Express Company, at DuBois; that he was such in 1905; that as such he received a package of coats; that they were light coats, that is, that the color of the coats was light; that they were bound up in a plain piece of paper and tied around with a cord, which it is alleged, on the part of the defendant, was a negligent and careless manner of packing them at the store from which they were shipped, that is, Mr. Cohn’s store from which they were shipped; that when received by the express agent at DuBois the coats were covered with dirt and smoke and stuff that was in the cars and from the trucks from the passage from Philadelphia to DuBois. And to be followed further by the testimony of Mr. Levinson, Mr. Whitehill, Mr. Davy, the express driver, and Miss Cochran that Mr. Levinson came there and saw the goods in this condition, believing that they were therefore, unsalable and unfit for use; that he refused to receive them.

      Mr. Pentz: This is objected to as immaterial and incompetent for the reason, first, that the evidence shows that Helen Levison was the agent of the defendant and was present at the store of the plaintiff, selected the goods and ordered them shipped by Adams express and was present when they were packed; second, that a delivery to the Adams Express Company, in pursuance of that direction, was a delivery to the defendant and the title immediately passed out of the plaintiff into the defendant and the defendant now has no remedy against the common carrier as it was the agent of the defendant and not of the plaintiff; third, because the Adams Express Company, the common carrier, was the judge of whether the packages were properly packed and. they being the agent of the defendant for the purpose of carrying the goods, accepted the goods and, therefore, the question of whether they were properly packed or not cannot be raised; fourth, that the place of shipment is too remote from the place of delivery for this witness to testify whether the goods were not properly packed when received by the express company, that the best evidence of that would be the receiving agent and not the agent at point of destination.
    The Court: The objection is sustained, evidence excluded and bill sealed for the defendant. [1]
    Verdict and judgment for plaintiff for $137.92. Defendant appealed.

      Errors^ assigned were (1) ruling on evidence, quoting the bill of exceptions; and (2) in giving binding instructions for plaintiff.

      A. D. Cole, with him L. E. Boyer, for appellant,
    cited: Goodman v. Oregon Ry. & Nav. Co., 22 Ore. 14; s. c., 49 A. & E. R. R. Cases, 87 (28 Pac. Repr. 894); Farmers' Nursery Co. v. Cowan, 21 Pa. Superior Ct. 192.

      W. C. Pentz, with him W. L. Calkins, for appellee,
    cited: Com. v. Hess, 148 Pa. 98; Dannemiller v. Kirkpatrick, 201 Pa. 218; Rickey v. Tutelman, 19 Pa. Superior Ct. 403; United Fruit Co. v. Bísese, 25 Pa. Superior Ct. 170; Griffith v. Ingledew, 6 S. & R. 429; Krulder v. Ellison, 47 N. Y. 36; Higginbotham v. Great Northern Ry. Co., 10 W. R. 358; McCarthy v. Louisville, etc., R. R. Co., 102 Ala. 193 (14 So. Repr. 370); Warden v. Greer, 6 Watts, 424; Hutchinson on Carriers, sec. 733; Klauber v. American Express Co., 21 Wis. 21.
    February 28, 1908:
   Opinion by

Head, J.,

The wife of the defendant, who was a merchant in DuBois, Pa., selected and bought at the store of the plaintiff, a merchant in Philadelphia, the goods for the price of which this action is brought. She directed that the merchandise bought be delivered by the plaintiff to the Adams Express Company in Philadelphia for transportation to DuBois. These directions were followed, but when the package arrived at destination it was found that the paper wrapping had been torn or destroyed in part and the contents, articles of wearing apparel, light in color, had become soiled and damaged. The defendant therefore refused to receive them from the carrier and later declined to honor the plaintiff’s demand for their price; hence this suit.

The single question for our consideration, raised by' this record, is the correctness of the ruling, made by the learned court, in refusing to permit the defendant to prove, by the local agent of the express company at DuBois, that “he received the package of coats; that they were bound up in plain paper and tied around with a cord, — which it is alleged was a negligent and careless manner of packing them; that when received at DuBois the coats were covered with dirt and smoke and stuff that was in the cars and from the trucks from the passage from Philadelphia to DuBois.”

Upon what theory, known to the law, could these facts, even if admitted in evidence, amount to a defense to the plaintiff’s' claim for the price of the goods? His contract was complete when he delivered the goods to the carrier in Philadelphia and he could recover their price even if they had never reached their destination: Com. v. Hess, 148 Pa. 98; Dannemiller v. Kirkpatrick, 201 Pa. 218; Rickey v. Tutelman, 19 Pa. Superior Ct. 403; United Fruit Co. v. Bisese, 25 Pa. Superior Ct. 170.

The testimony offered did not relate or purport to relate to the condition of the package as it was delivered to the carrier at Philadelphia. The agent at DuBois had and could have no knowledge on that subject. The mere fact that the package was in bad condition when it reached its destination, exhibiting damage from smoke and dirt from the cars and trucks of the carrier, who was the agent of the defendant for delivery, raised no presumption of failure of duty on the part of the plaintiff. If it tended to prove anything it would tend to fix, prima facie at least, negligence on the carrier which, for the purposes of this case, would be the negligence of the defendant himself.

True, a carrier may, for its own protection, establish reasonable regulations as to the manner in which goods must be prepared for shipment, and if a shipper would fail to observe such regulations, the carrier might lawfully refuse to receive the package for carriage. But we have no such question to deal with, nor have we a case where goods, of a particularly fragile or perishable nature, are so packed or marked as to indicate to the carrier that they need not be handled with more than ordinary care or celerity. We have simply a case where the defendant neither proved nor offered to prove any act or default on the part of the plaintiff that would, in law, defeat his right to recover the price agreed on for the goods he sold and delivered in the manner required by his contract. The learned trial court was therefore right in holding that the defendant had failed to exhibit any adequate defense, and as a consequence, in directing a verdict for the plaintiff.

Judgment affirmed.


text:
    Shaffer v. Coleman, Appellant.

      Negligence — Automobile—Fright of horse — Contributory negligence— Evidence — Question for jury.

    In an action to recover damages for personal injuries against the owner of an automobile, evidence for the plaintiff tended to show that at the time of the accident she was driving a buggy on a summer evening along a public road. In the buggy was another woman and a girl about nine years old, sitting upon a little improvised seat in front of and between the two women, and also a child about three years old seated on the lap of the other woman. The horse was well broken, accustomed to the road, and had been driven by the plaintiff a number of times before. While passing through a little village, approaching a crossroad less, perhaps, than 200 feet away, the defendant’s automobile, without any warning from horn or gong, suddenly rounded the comer, and came directly towards her. The horse showing some signs of fright, she put up her hand and called to them to stop. The machine was coming fast, "at high speed,” faster than street cars between two points mentioned, which made ten miles in forty minutes. The occupants of the automobile paid no attention to plaintiff’s signal, came right up the road until it was “ so close if the horse would not have jumped out of their way, they would have run right over us.” Thus frightened, the horse got beyond control and ran away, partially wrecking the buggy and injuring the plaintiff. The other woman who was in the buggy corroborated plaintiff’s testimony. Held (1) that it was not error to permit the plaintiff and her chief witness to testify as to the speed at which the automobile was traveling; (2) that the court could not say as a matter of law that the plaintiff was guilty of contributory negligence in permitting another woman and two children to occupy the buggy with her in such a way as to interfere with the management of her horse; (3) that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      Practice, C. P. — Trial—Improper remarks of counsel — Withdrawal of juror — Discretion of court.

    The appellate court will not reverse a judgment on a verdict because the trial judge refused to withdraw a juror and continue the case on account of improper remarks of counsel to the jury, where it appears that the verdict was not excessive in amount, and that the judge warned the jury not to be influenced or affected in any way by any improper and questionable remarks of counsel.
    Argued Oct. 30, 1907.
    Appeal, No. 112, Oct. T., 1907, by defendant, from judgment of C. P. Lebanon Co.,' Sept. T., 1904, No. 122, on verdict for plaintiff in case of Emma Shaffer, wife of Horace N. Shaffer, v. Edward- R. Coleman.
    February 28, 1908:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    ■Trespass to recover damages for personal injuries. Before Ehrgood, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court under objection and exception permitted Mrs. Shaffer and Mrs. Wolfersberger to testify as to the rate of the speed of the automobile. [1, 2]
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Errors assigned, among others were (1, 2) ruling on evidence, quoting the bill of exceptions; (11) in refusing to withdraw a juror and continue the case because of intemperate language of counsel.

      E. E. McCurdy, of Gobin & McCurdy and John G. Johnson, with them Grant Weidman, for appellant,
    cited: Mish v. Wood, 34 Pa. 451; Piollet v. Simmers, 106 Pa. 95; Silberman v. Huyette, 22 Montg. County Law Repr. 39.

      Walter C. Graeff, for appellee.
   Opinion by

Head, J.,

In this action the plaintiff seeks to recover damages for injuries sustained while driving on the public highway, which injuries, she alleges, were caused by the negligence of the defendant who was operating his automobile on the same highway at the time of the accident. The testimony is very voluminous and conflicting at every point, and the appellant presents twenty-eight assignments of error for our consideration.

An examination, of the charge, in which the learned trial judge submitted to the jury the seriously contested questions of the defendant’s negligence and the plaintiff’s contributory negligence, will clearly show, we think, that, if the court was right in submitting these questions at all, the manner of the submission was so favorable to the defendant as to leave him no ground for complaint on that score. To determine whether these were mixed questions of fact and law and, therefore, necessarily submitted to the jury, or whether they should have been regarded by the court and disposed of as simply questions of law, we must, of course, resort to the evidence. But in reviewing it, we exercise functions quite different from those of the jury. Their verdict has planted in this record, as established facts, the incidents and circumstances attending the accident, as narrated by the plaintiff and her witnesses. We must so regard them, notwithstanding the argument, so ably pressed upon us, that the plaintiff’s story, either by reason of untruthfulness, excitement or other cause, was improbable, not in harmony with certain fixed facts, and'strongly contradicted by a mass of forceful evidence given by the defendant and his witnesses.

Her version of the occurrence was briefly this: On a summer evening in 1904 she was driving along a public road. She had with her in the buggy another lady, Mrs. Wolfersberger, who, with herself, occupied the usual seat. A girl about nine years old sat upon a little improvised seat in front of and between the two ladies, and Mrs. Wolfersberger held, in her lap, a child about three years old. The horse was well broken, accustomed to the road, and had been driven by the plaintiff a number of times before. While passing through a little village, approaching a crossroad, less, perhaps, than 200 feet away, the defendant’s automobile, without any' warning from horn or gong, suddenly rounded the corner and came directly towards her. The horse showing some signs of fright, she put up her hand and called to them to stop. The machine was coming fast, “at high speed,” faster than the street cars from Palmyra to Lebanon, which make ten miles in forty minutes. They paid no attention to her signal, came right up the road until it was “ so close if the horse would not have jumped out of their way they would have run right over us.” Thus frightened, the horse got beyond control and ran away, partially wrecking the buggy and injuring the plaintiff. The plaintiff not only testified herself, with great positiveness, to all of the facts thus stated, but Mrs. Wolfersberger, apparently a disinterested witness, does the same.

What disposition could be made of such testimony by the learned court below, other than submit it to a jury, we are unable to discover. If the jury accepted these witnesses as credible and their statements as true'the inference of the defendant’s negligence would naturally, if not necessarily, follow.

In the printed brief, presented by the appellant’s counsel, the numerous assignments of error are grouped around several propositions now to be considered. It is contended that even if the evidence would warrant the finding, that no warning of the defendant’s approach was given, the court should not have permitted the jury to consider that fact, because there was no evidence that it contributed to bring about the plaintiff’s injury. Some, at least, of the reasons why the legislature inserted in the statute an express and positive command to give such warning, under circumstances like those now before us, will at once occur to the ordinary mind. Had the plaintiff been thus warned a little more time would have been afforded her to prepare to meet the car. She might have gotten out of the buggy herself or caused the other occupants to do so and thus secured better control of her horse; she might have turned into a side street or alley to avoid the meeting, or she might have called someone to her aid. But from what source could we expect direct or positive testimony that the deprivation of any one or all of such opportunities contributed to cause the accident that followed? It is doubtless true, in every action like this one, that the jury must be able to find that an act of negligence, proven or admitted, contributed to cause the injury complained of, otherwise it would become an irrelevant fact; but their conclusion need not rest on the direct testimony of a witness who would undertake to assert such a thing as a matter of fact. It may exist as an inference justly deducible from all the facts in evidence, and such inferences may be considered by a jury with as much propriety as the facts out of which they arise. We think, therefore, the refusal of the defendant’s first and second points was correct, while the general charge on the subject of the failure to give warning was more favorable to the defendant than he had a right to expect.

Several assignments complain of the action of the court in permitting the plaintiff and her chief witness to testify as to the speed at which the automobile was traveling, because, it is alleged, they were not qualified to give such testimony. They were not called as expert witnesses, nor did they attempt to give to the jury conclusions which could properly be drawn only from special knowledge they were not shown to possess. They were eyewitnesses of a fact and they but undertook to convey to the jury the picture, made on their minds at the time, of something transpiring before their eyes. The speed they saw they could rightfully undertake to describe in any one of the several ways adopted. The accuracy of their impressions as to the speed of the approaching car, their evidential value and the weight to be given to them, were matters for the jury under a proper submission. Again it is urged that even if the defendant drove his car at a rate of speed that was undue under the circumstances, there was no evidence that his negligence, in this respect, contributed to the plaintiff’s injury and, therefore, the court should have withdrawn that entire subject from the consideration of the jury. Again we answer, we do not find the argument convincing for the reasons adverted to in discussing the defendant’s failure to give warning of his approach before turning the corner.

The appellant also insists that “the plaintiff was guilty of contributory negligence, and the court should have so instructed' the jury and given binding instructions in favor of the defendant.” Manifestly, we think, the court could not have safely predicated such an instruction upon the mere fact that the plaintiff permitted another woman and two children to occupy the buggy with her in the manner described. The statement that “ she thus put herself in a position in which it was impossible for her to managé her horse,” may be freely made by counsel in argument before the tribunal invested with the right to determine, that in so driving on the highway, the plaintiff went beyond the bounds of ordinary prudence and so aided in bringing about her own injury. But no court could make such a declaration, as a matter of law, and base thereon the conclusion that the plaintiff, by her own negligence, had lost her right to complain of the defendant’s want of care.

Objections were made, at the time of the trial, to certain remarles of plaintiff’s counsel in summing up to the jury, and the court was asked to withdraw a juror and continue the case. This request was refused and this refusal is assigned for error. Inasmuch as it is impossible to have the record reproduce the conditions attending the trial, or' to accurately measure the effect on the jury of the remarks complained of, the appellate courts have uniformly held that, in such cases, much must be left to the sound discretion of the trial judge. Ordinarily it is deemed sufficient if the trial judge, when alleged improper remarks of counsel are brought to his notice, declares their impropriety and plainly cautions the jury to give them no consideration. In an extreme case, where there is reason to fear that even such caution will,not undo the mischief, the court may and should withdraw a juror and continue the case.

The record shows that the learned trial judge carefully explained to the jury their duty in the matter, and warned them not to be influenced or affected in any way by the heated remarles or intemperate language of counsel on either side, indicating that there had been some violation of the strict rule on both sides. He did not consider the case such an extreme one as to warrant the withdrawal of a juror, and we cannot say his discretion was abused: Com. v. Windish, 176 Pa. 167; Com. v. Weber, 167 Pa. 153. “In a doubtful case we will assume that the jurors acted upon the admonition of the trial judge, to disregard the questionable remarks, rather than that they were improperly influenced by them:” Com. v. Striepeke, 32 Pa. Superior Ct. 82. If the plaintiff was entitled to recover at all, the verdict would not be regarded as excessive in amount, and where that is the case and the court has fairly cautioned the jury as to alleged improper remarks by counsel, this court will not réverse: Moore v. Neubert, 21 Pa. Superior Ct. 144.

The questions we have considered cover most of the assignments and all that were most seriously pressed. As to the remaining ones it is only necessary to say that, after a careful examination of the entire record, we are all of opinion that it discloses no reversible error.

Judgment affirmed.


text:
    Commonwealth v. Capero, Appellant.

      Criminal law — Felonious assault — Child of seven years — Witness—Examination without oath — Evidence.
    It is reversible error for the court on the trial of an indictment for felonious assault on a child seven years old, to permit the child to make a statement not under oath to the jury.
    Submitted Oct. 31, 1907.
    Appeal, No. 178, Oct. T., 1907, by John Capero, from judgment of 0. & T. McKean Co., Feb. Term, 1907, No. 1, on verdict of guilty in case of Commonwealth v. John Capero.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for felonious assault. Before Bouton, P. J.
    At the trial the court permitted the seven year old girl on whom it was alleged the assault had been committed to make a statement to the jury not under oath. [2]
    The court refused to give binding instructions in favor of the defendant.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1) in admitting the unsworn statement of the child; and (5) in refusing binding instructions for defendant.

      Thomas H. Morrison and Thomas F. Richmond, for appellant.

      Guy B. Mayo, district attorney, for appellee.

      February 28, 1908:
   Opinion by

Orlad y, J.,

The defendant was indicted and convicted of committing a felonious assault on a child seven years of age. The trial was conducted without reversible error save that suggested in the second assignment; the record as to this is as follows: “Mamie Monago being duly produced and examined on behalf of the Commonwealth, testified as follows: Counsel for defendant objects to the child Mamie Monago testifying in this case owing to her extreme youth. By the Court: Objection overruled, and evidence admitted. Commonwealth have the right to put her on the witness stand, and let her tell her story, to which ruling the defendant excepted and bill sealed.” It is contended that the record does not affirmatively show that this child was not duly sworn and examined under her oath, but it is quite apparent, both from the record above quoted, and from the charge of the court, in explanation of it, to the jury, as follows: “Then the little girl was called. Now, she is of tender years, probably does not understand the nature of an oath, but she is entitled to go upon the stand, the jury are entitled to have her story, and the commonwealth are entitled to have her story;” that the statement from this child was then received from the witness stand without an oath having been administered to her. There is no warrant of law in this state for receiving the testimony of a witness in a criminal case in any other than under the forms prescribed by the common law. The child was aged seven years. No examination was made by the court or counsel touching her capacity as to intelligence, understanding or responsibility. By the common-law rule every person over the age of fourteen is presumed to have common discretion and understanding until the contrary appears, but under that age it is not so presumed, and therefore inquiry is made as to the degree of understanding which the child offered as a witness may possess. If he appears to have sufficient natural intelligence to distinguish between good and evil and to comprehend the nature and effect of an oath he may be examined on oath: 1 Greenleaf on Evidence, sec. 367. There is no conflict among the authorities as to the necessity of administering an oath, though there is some as to the question of age. Prima facie the child was incompetent and could not testify. The court might, however, examine her so as to determine her mental and moral capacity and allow her to testify. This determination is judicial; the examination is a part of the trial, it must be made in public, and in court. The decision must be founded upon the opinion of the judge from the examination which he makes, and cannot be referred to somebody else. He must act upon his own opinion. The testimony of witnesses is to be given under the sanctity of an oath, and where a child is of such tender years as not to be able to comprehend the nature of an oath, the safeguards which the law has placed around human testimony would be entirely overthrown were such statements permitted to be given: People v. Frindel, 65 N. Y. Supreme Ct. 482. The 'credit due to the statements of such a witness is submitted to the consideration of the jury, who should regard the age, the understanding, and the sense of accountability for moral conduct in coming to their conclusion.

At one time it was considered that an infant under the age of nine years could not be permitted to’ testify under any circumstances. And that between the age of nine and fourteen years it was within the discretion of the court to admit or not, as it should or should not be satisfied of the infant’s understanding and moral sense: Rex v. Dunnel, East’s P. C. 442. It was finally determined in Brazier’s Case, East’s P. C. 443, in consultation between all the judges, that a child of any age capable of distinguishing between good and evil might be examined on oath, and this is considered the established rule in civil and criminal cases: Roscoe’s Cr. Ev. 94; Simpson v. The State, 31 Ind. 90. The admissibility of children as witnesses depends not merely upon their possessing a competent degree of understanding, but also in part upon their having received such a degree of religious instruction as not to be ignorant of the nature of an oath, or of the consequences of falsehood: 1 Phillips on Evidence (4th Am. ed,), 11 and 12. If an infant appear on examination by the court to possess a sufficient sense of the wickedness and danger of false swearing he may be sworn, although of ever so tender an age. The credibility of the witness is to be judged of by the jury from the manner of the testimony and from other circumstances: Commonwealth v. Hutchinson, 10 Mass. 225. It is not a fact that no child of seven years of age can understand the nature of an oath. This depends on the precocity of the child, the training it has received and its moral perceptions: 1 Greenleaf on Evidence, sec. 367. It is not unusual to receive the testimony of children under nine, and sometimes even under seven years of age, if they appear to be of sufficient understanding; and it has been admitted even at the age of five: Roscoe’s Cr. Ev. 94. The law fixes no precise age when a witness shall be excluded, and inquiry is made by the court to determine the question suggested, and ascertain the capacity of the witness, and the admission or rejection must depend upon the sound discretion of the judge making the examination. If the child comprehends the obligations of an oath and believes that any deviation from the truth, while under oath will be followed by appropriate punishment, it is competent, although it is ignorant of the nature of the punishment: Blackwell v. State, 11 Ind. 196; Wade v. State, 50 Ala. 164. The appellate court will not interfere if the trial judge concludes that a child is competent in the absence of a clear abuse of discretion: Washburn v. The People, 10 Mich. 372; West Virginia v. Michael, 19 L. R. A. 605 and notes. In such case the trial court has a very wide discretion, but we have not found any case justifying the reception of the unsworn statement of a child of such immature years, and the danger of receiving such a statement from such a source is well illustrated in the last cited case: “Not being amenable to the law for false swearing, and having no knowledge of moral responsibility, designing and wicked people may easily use them to further intrigues of their own without fear of punishment for subornation of perjury. They are as clay in the potter’s hand, to be moulded, some to honor, and some to dishonor, lacking conscientiousness, they repeat with phonographic precision the things that have been told to them to say, be they true or false. Neither reason nor authority justifies the admission of such witnesses. The effect of an oath upon the conscience of a child should arise from religious feelings of a permanent nature, and not merely from instructions confined to the nature of an oath, recently communicated to her for the purpose of trial.” The judge of the trial court had means of decision in this matter not possessed by us, and while in the great majority of cases the decision of the trial court in the matter of the competency of a child depending as it does not on age but on intelligence, must be final, and it must be a very flagrant case of error to authorize the appellate court to reverse the judgment, Wharton on Evidence, 368, yet, even when an oath is administered, it is still a matter of discretion which is reviewable by the appellate court, and the abuse of which is a reason for a reversal of the judgment.

In all cases the test on which testimony is received in courts is the oath administered to the witness, and whatever its form may be, the oath is an appeal to God by the witness affirming that he will speak the truth on the witness stand. If the witness has no knowledge of God, or belief in his existence, and shows no sense of accountability to him for false testimony there is no guaranty of the truth of the testimony. The sense of accountability of the witness, if he be untruthful in giving his testimony, has been universally recognized' as the requisite of competency, and renders unnecessary any elaborate citation of authority: 1 Greenleaf on Evidence, 365, 367; Commonwealth v. Wilson, 186 Pa. 1.

In the case before us it is apparent that the child was but seven years of age, that she was not sworn, that no examination was made by the trial judge in order to qualify her as a witness under oath, that she was permitted to make her statement to the jury, and that on this statement alone could the jury have returned their verdict of guilty. This assignment of error is sustained, and the record is remitted to the court below for a new trial.


text:
    Heckman v. Schmeck, Appellant.

      Costs — Affidavit of defense — Part admitted to be due — Practice, C. P.— Rule of court. ,
    Where in an action for the price of mules sold and delivered where the defendant’s affidavit of defense avers “that said mules at the time of said sale were not worth more than about two hundred and fifty dollars, which sum he is willing and ready to pay, but no more, ” and at the trial a verdict is rendered for plaintiff in a sum less than $250, the plaintiff will not be liable for the costs under a rule of court which provides that “if no judgment shall have been entered and there be no recovery for more than is admitted to be due by the affidavit, plaintiff shall pay all the costs accruing in the case subsequent to the filing of said affidavit.” In such a case the affidavit does not admit any sum to be due within the meaning of the rule of court.
    Argued Nov. 12, 1907.
    Appeal, No. 253, Oct. T., 1906, by-defendants, from order of C. P. Berks Co., March T., 1904, No. 43, discharging rule to impose costs on plaintiff in case of Alexander Heckman v. J. E. Schmeck and William H. Riegel, executor of Elias Riegel, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to impose costs on plaintiff.
    The facts are stated in the opinion of the Superior Court.
    The rule of court referred to in the opinion is as follows:
    Rule IV, sec. 5: Where the defense taken in the affidavit is to part only of the plaintiff’s demand, judgment shall upon praecipe of plaintiff forthwith be entered by the prothonotary for the amount admitted to be due; thereupon the sufficiency of the affidavit as to the residue of the plaintiff’s demand may be tested, and if it be found insufficient, or if, in the contrary event (in which case the cause may be proceeded in as to such residue), a recovery be had therefor or for any part thereof, a second judgment may be entered in said action; provided, that if no recovery be had thereon, the plaintiff shall pay all the costs accrued after the entry of judgment for the part admitted to be due; or, if no judgment shall have been entered and there be no recovery for more than is admitted to be due by the affidavit, plaintiff shall pay all the costs accruing in the cause subsequent to the filing of said affidavit.
    February 28, 1908:

      Error assigned was order discharging the rule.

      Isaac Hiester, with him Benj. 7. Shearer, for appellants,
    cited: Bank v. Walton & Co., 30 W. N. C. 47; Calkins v. Keoly, 15 Pa. C. C. Rep. 148; Jordan v. Kleinsmith, 5 Pa. Dist. Rep. 674; Dietrich v. Dietrich, 154 Pa. 92; Brennan’s Est., 65 Pa. 16.

      C. H. Ruhl, for appellee,
    cited: Ganor v. Hinrichs, 2 Pa. Superior Ct. 522; Maylin v. Root, 33 W. N. C. 76; Kuhnle v. Mc-Keever, 1 W. N. C. 19; Jordan v. Kleinsmith, 5 Pa. Dist. Rep. 674; Hamer v. Humphreys, 2 Miles, 28.
   Opinion by

Morrison, J.,

The plaintiff sued to recover on a promissory note and served the declaration and copy of note upon the defendants. The amount of the claim was $396, and it called for an affidavit of defense. The note was given for a pair of mules purchased from the plaintiff. Defendant J. E. Schmeck filed an affidavit of defense for himself in which he set forth his alleged defense and said: “That said mules at the time of said sale were not worth more than about $250, which sum he is ready and willing to pay, but no more.” ' It is upon this language that the questions raised by the assignments of error depend. No affidavit of defense was ever filed by or for defendant Elias Riegel. After the case had been put at issue by the defendants voluntarily entering their plea, within the time allowed for filing affidavits of defense, defendant Riegel died and his executor was substituted as a defendant. The case was tried in September, 1905, and the jury returned a verdict for $222.65 in favor of the plaintiff. On September 13, 1906, defendant Schmeck presented his petition averring, in substance, that he filed an affidavit of defense admitting to be due the sum of $250, and averred his willingness to pay said sum, but plaintiff refused to accept said amount and proceeded to trial, and on September 28,1905, a verdict for $222.65-was rendered, and on June 16, 1906, a new trial was refused; that plaintiff not having recovered as much as was admitted to be due, by the affidavit of defense, is liable for costs of the suit incurred after the filing of the affidavit - of defense. Upon this petition, the court granted a rule to show cause and after answer and supplemental answer filed, and argument, the learned court filed an opinion and with it a decree as follows: “November 24, 1906, the rule to show cause is discharged,” and judgment was entered against the defendants for costs. This action of the court on the petition is assigned for error.

In determining the question thus raised the learned court was called upon to construe one of its own rules and we see no error in the construction put upon the rule. A careful examination of the opinion of the learned judge below, and the arguments of counsel, and authorities cited, does not convince us that the record discloses reversible error.

The affidavit of defense made by Schmeck is not in terms made on behalf of both defendants. It was made and sworn to by Schmeck and only sets forth his defense. It did not plainly and candidly admit that the defendants owed the plaintiff $250. In our judgment, the averment bears the construction that Schmeck did not admit, owing $250, but that he was willing to pay that sum, and no more, to settle the claim. Moreover, the defendants, within the time allowed for filing affidavits of defense, voluntarily entered their plea, thus tendering an issue to the plaintiff as to his right to recover the whole claim or any part thereof. The plaintiff accepted this issue and went to trial. In addition to this, defendants did not concede, at the trial, that they owed the plaintiff $250, and interest, but made a defense on the merits and reduced the recovery to $222.65. At the trial Schmeck testified that the mules were only worth $197. This testimony is wholly inconsistent with his contention that he admitted in his affidavit of defense that-he owed the plaintiff $250. By his testimony he furnishes a method of interpreting what he meant by the language used in the affidavit of defense. If this affidavit, rightly construed, admits owing the plaintiff $250, then it is difficult to understand his testimony at the trial as a truthful statement. All of this convinces us that Schmeck did not mean to admit that he owed $250 on the note, and interest, but that he offered the amount of $250, and no more, as a settlement of the claim. If we are right in this construction, it is not a sufficient admission that defendants owed on the note $250 and interest. We think the opinion filed by the learned court below sufficiently vindicates his decision and that nothing more can be profitably said on the subject.

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


author: Porter, J.,

text:
    Althouse v. Roth, Appellant.

      Insurance — Funeral benefits — Payment—Husband and wife.

    Where a policy of insurance provides for the payment of funeral benefits to the executors or administrators of the insured, but also provides that the company may make payment “to any relative by blood, or connection by marriage of the insured,” or to any other person appearing to the company to be equitably entitled to the benefits by reason of having incurred expense for the burial of the insured, and it appears that the company paid the benefits in good faith and in the exercise of its discretion to the husband of the insured, such payment vests in the husband an absolute property in the proceeds, and he may deal with them as his own without any liability to account for them to his wife's administrator.
    Argued Nov. 12, 1907.
    Appeal, No. 254, Oct. T., 1906, by defendant, from order of C. P. Berks Co., Feb. T., 1906, No. 68, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Cyrus D. Althouse, executor of the last will of Mary Roth, deceased, v. Jacob L. Roth.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a policy of life insurance.

      February 28, 1908:
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

      Harvey F. Heinly, for appellant.
    — There is no privity of contract between the plaintiff and the defendant arising out of the contract of insurance, which is an express contract; the proceeds of the policy were paid to and received by defendant in his own right, free from any liability to pay over to another: Thomas v. Prudential Ins. Co., 148 Pa. 594; Logan’s Est., 16 Pa. Dist. Rep. 187; Brennan v. Prudential Ins. Co., 170 Pa. 488; Crandall v. Bryan, 15 How. Pr. (N. Y.) 48; Hackett v. Equitable Life Assur. Soc., 63 N. Y. Supp. 1092; Com. v. Moor-head, 7 Pa. C. C. Rep. 513; Brown v. Title & Trust Co., 174 Pa. 443.

      Morton L. Montgomery, for appellee.
   Opinion by

Porter, J.,

The plaintiff’s decedent at the time of her death held a policy of insurance in the Prudential Insurance Company of America, which contained the following covenants, to wit: “The Prudential Insurance Company of America agrees to pay . . . . unto the executors, administrators or assigns of the person named as the insured in this policy, unless settlement shall be made under the provisions of article second on the back hereof, the amount of benefit provided in the schedule herein contained and any additions thereto, within twenty-four hours after acceptance at its said office of satisfactory proof of the death of the insured during the continuance of this policy, which is issued and accepted subject to the conditions and agreements printed on the back hereof, which are hereby referred to and made part of this contract.” Article second on the back of the policy thus referred to, and made part of the contract, was as follows: “The company may make any payment provided for in this policy to any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense in any way on behalf of the insured, for his or her burial or for any other purpose, and the production by the company of a receipt signed by any or either of said persons or' of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied.” The insurance company, after the death of Mary Roth, paid over to her husband, this defendant, the sum of $370, the amount of money specified by the policy. About a month after the payment was so made the will of the decedent was probated and the husband elected to take against it her real estate, as tenapt by the curtesy. The defendant did not pay any part of the money received from the insurance company on account of expenses incurred for the burial of his wife. The plaintiff brought this action to recover of the defendant the moneys received as aforesaid from the insurance company. The foregoing facts appeared from the statement filed by plaintiff and the affidavit filed by the defendant. The statement averred that the money so paid by the insurance company to the defendant was a part of the personal estate of Mary Roth and that the defendant, by accepting- payment thereof from the insurance company, became indebted to the estate of the said Mary Roth in the amount so received. The affidavit of defense avefred that the defendant was a connection by marriage of the insured, being her surviving husband, that, under the provisions of the policy, the insurance company paid the said amount to him and he received it as the party entitled thereto, in his own right and not for the use of the estate of Mary Roth. The court below entered judgment against the defendant for want of a sufficient affidavit of defense, from which judgment we have tins appeal.

The only question raised by the affidavit of defense is whether the person who is by an insurance company designated, under such provisions in a policy, as the person equitably entitled to the proceeds thereof, and to whom the insurance company-under such designation makes payment, receives such money for his own use or merely as a trustee for the estate of the insured. The contention of the appellant is that the person who thus receives the proceeds of a policy, paid in pursuance of such covenants, receives it absolutely as his own. The suggestion of the learned judge of the court below, that, if the contention of the defendant is correct, a person seeking insurance would be very foolish to accept a policy involving any considerable amount of money which contained such covenants, is supported by sound reasoning, but we are to determine the legal results of the covenants into which the parties actually entered, and not whether the decedent was wise or foolish in making the contract. Contracts of insurance containing these identical covenants have been construed by the Supreme Court, and the effect of the designation by the insurance company, after the death of the insured, of a person other than the legal representative of the estate of the insured, ás the person equitably entitled to payment of the proceeds of the policy, must be determined in the light of those decisions.

The actions in the cases which have been passed upon by the Supreme Court were, it is true, brought by the legal representatives of the estate of the insured directly against the insurance company, but the meaning and effect of the covenants in question were directly involved. In the case of Thomas v. Prudential Insurance Co., 148 Pa. 594, the company had paid the amount secured by the policy to a person who had a claim against the estate, for boarding the deceased and payment on account of funeral expenses, equal to about one-half the money so received. It was held in' that case that the administrator of the estate of the insured was not entitled to recover, and the ground upon which the decision was based was that the contract of the parties vested the company with a discretion to determine the person, within the classes specified in the contract, who was equitably entitled to the insurance money. Mr. Chief Justice Paxson, who spoke for the court in that case, said: “The company paid this money to the person appearing to be equitably entitled thereto, and produced a receipt signed by her for the same. This was a complete defense, under the very terms of the policy. It is for the company to judge who is the person equitably entitled to the money. This discretion is vested in it by the contract between the parties. The contract does not offend against any rule of.law or public policy, and we cannot hold that the administrator is entitled to recover without making a new contract for the parties.” The company had in that case paid to a person, within the classes designated, the full amount secured by the policy and had thus brought itself within the very letter of its contract, and if that case stood alone there might still seem good ground for the contention that the party who received the money merely took as trustee for the estate of the insured and could not, after having been determined by the insurance company as the person entitled to receive, deal with the fund arising from the policy as if it were his or her own property. The effect of a decision by the insurance company that some other person is equitably entitled to the money would, however, seem necessarily to imply a determination adversely to the right of the legal representative of the estate of the insured.

The nature of the right acquired by the person who is designated by an insurance company, in pursuance of such covenants, as the person equitably entitled to receive the proceeds of the policy and the power of such person to deal with the policy and its proceeds as if it were his own individual property, was again considered in the case of Brennan v. Prudential Insurance Co., 170 Pa. 488. This case involved a question which had not been presented in the prior decisions. The policy was for $500 and contained' covenants precisely similar to that with which we are now dealing. The company settled with a person other than the legal representative of the insured, but within the class to whom it was authorized to make payment under the clause in question for one-half the amount called for by the policy and took a receipt from such person in full of all claim against the company. The plaintiff in that case contended that as the company had not paid the full amount of the policy to the person with whom it settled, the estate was at least entitled to recover the balance. The learned judge of the court .below, whose opinion upon this branch of the case was adopted by the Supreme Court, said: “If, therefore, the company may determine to whom it will pay they may also make their own terms with him, and if he sees fit to take fifty cents on the dollar or any other sum in settlement of the amount insured it concerns no one but himself and the company are discharged. ... By the selection of Mrs. Rainey, as the party equitably entitled to the money due on the policy it was conclusively determined that the plaintiff was not entitled to it, and that is the end of his case. It is immaterial to him or to us whether she got all she ought to have gotten or not. The company has discharged the obligations of its contract. The policy, by its own terms, is satisfied and no suit can now be entertained upon it.”' This decision seems to conclusively settle the question that the party, who is by the insurance company designated, under the provisions of such a policy, as the person equitably entitled to receive the money is thereby vested with an absolute property in the proceeds and may deal with it as his own. He certainly could have no authority to release the insurance company upon payment of fifty cents on the dollar if the proceeds of the policy were the property of the estate of the insured. The contract of the parties vested the company with a discretion to determine whether the proceeds of the policy equitably belonged to the executor of the decedent or to some other person, within one of the classes designated by the policy. When the company, under such a policy, in good faith designates a person within the classes specified and that designation is not procured by fraud or misrepresentation upon the part of the person so designated, the person receiving the money acquires the same right to it as if he had been in the policy designated as the beneficiary. We are unable to avoid the conclusion that the question here presented is necessarily ruled by the case last above referred to, and must hold that, in the absence of any allegation of fraud or misrepresentation, the defendant acquired title to the money which he received in his own right.

The judgment is reversed with a procedendo.