author: Rios, P. J.,

text:
    Barner v. Lyter, Appellant.

      Insurance — Life insurance — Beneficiary—Assignment of policy.

    A policy of insurance provided that the insured might “change the beneficiaries at any time during the continuance of this policy by filing with the company a written request, accompanied by this policy, such change to take effect upon the indorsement of the same on the policy by the company.” The beneficiaries were two minor children of the insured. The insured, when under sentence of death, executed a paper purporting to be an assignment of the policy in payment of, or as collateral security for, a pre-existing debt. The paper was delivered to the insurance company, but it was not accompanied by the policy, nor was any change of beneficiary indorsed on the policy, nor was it stated in the paper that it was impossible to produce the policy for the purpose of having such indorsement made. The paper was not addressed to the company, nor was the subject of change of beneficiary mentioned therein, nor did it appear in any way that the insured intended it to be filed with the company. Held, (1) that the burden of proving the intent of the insured to revoke the designation of his children as beneficiaries, rested on the claimant; (2) that an assumption by the company of a neutral position could not give the paper the effect of a revocation of the designation, unless it was so intended by the insured, and (3) that the evidence was insufficient to establish an intent to change the beneficiaries.
    Argued March 14, 1906.
    Appeal, No. 7, March T., 1906, by defendant, from judgment of C. P. Perry Co., April T., 1903, No. 28, on issue to determine ownership to' the proceeds of a policy of insurance in case of Walter A. Barner and Marion A.. Barner, minor children of Elmer E. Barner, deceased, by their guardian, James M. Sharon, v. William H. Lyter.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Issue to determine ownership to the proceeds of a policy of insurance. Before Shull, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiffs.

      J. N. Keller, for appellant,
    cited: Stewart v. Lang, 37 Pa. 201; Allison’s App., 77 Pa. 221; Lane v. Nelson, 167 Pa. 602; Parker v. Supply Co., 186 Pa. 294; Mergenthaler’s App., 15 W. N. C. 441.

      James M. Barnett, of Barnett & Son, for appellees,
    cited: Rymer v. Swick, 1 Lack. L. Reg. 430 ; McNeil v. United Order of Golden Cross, 131 Pa. 339 ; Central Bank v. Hume, 128 U. S. 195 (9 Sup. Ct. Repr. 41); Hewlett v. Home for Incurables, 74 Md. 350 (24 Atl. Repr. 324); Security Co. v. Life Ins. Co., 14 Pa. Dist. Rep. 554; Hunter v. Firemen’s Relief, etc., Assn., 20 Pa. Superior Ct. 605 ; Vollman’s App., 92 Pa. 50 ; Jinks v. Banner Lodge, 139 Pa. 414; Masonic Mut. Assn. v. Jones, 154 Pa. 107; Ellmaker v. Ellmaker, 4 Watts, 89 ; Auman v. Auman, 21 Pa. 343; Case v. Cushman, 3 W. & S. 544; Eberts v. Thompson, 113 Pa. 19 ; Foch’s Est., 2 Woodw. 269 ; Gass’s App., 73 Pa. 39; Nat. Bank of Brunswick v. Sixth Nat. Bank, 212 Pa. 238.
    October 5, 1906:
   Opinion by

Rios, P. J.,

In 1899 Elmer E. Barner took a policy of life insurance in the Northwestern Mutual Life Insurance Company, in which the latter promised to pay the stipulated sum to the persons designated therein as beneficiaries, namely, his two minor children, Walter A. Barner and Marion A. Barner, “ jointly or to the survivor, subject to the right of the insured to change the beneficiary or beneficiaries as hereinafter provided.” The provision referred to, so far as material here, reads: “ This policy is issued with the express understanding that the insured, subject to the rights of any assignee, .... may change the beneficiaries at any time during the continuance of this policy by filing with the company a written request, accompanied by this policy, such'change to take effect upon the indorsement of the same on the policy by the company.”

In 1901 the insured executed a paper which recited that he was then in prison under sentence of death, that while incarcerated he had previously delivered the policy to a member of the bar with the request that an assignment be drawn for execution by him ■“ assigning all the right, title and interest therein or thereunder to his brother-in-law, William H. Lytér,” as collateral security for loans and advancements, and that such assignment was executed by him in the full belief that the same was marked for the sole use and benefit of Lyter. The paper then proceeds as follows:' “ And I do hereby declare that it was my intention, at the time of the execution of the aforesaid assignment, as it is also my present intention and desire, that any and all moneys, which are due or which may hereafter become due under the aforesaid policy, shall be paid by the company unto my aforesaid brother-in-law for his sole use and benefit, in order that he may be reimbursed for the moneys paid and advanced for and on my account. . . . And for the purpose of expressing the manner in which the fund, which will become due under the policy aforesaid (the number of which is unknown to me,.but is the only one I hold with the said company), I do hereby, for and in consideration of the moneys ]oaned by William H. Lyter to me, as well as moneys advanced by him for and on my account, sell, assign, transfer and set over unto my aforesaid brother-in-law, William H. Lyter, his heirs or assigns, all right, title and interest in and to the said policy, as well as all moneys which may become due and payable at my death for and on account thereof.”

Within thirty days after its execution a duplicate of this paper was delivered to, and receipt thereof acknowledged by, the company. But the paper was not accompanied by the policy, nor was any'ehange of beneficiary indorsed thereon, and it is worthy of notice in the construction of the paper that it was not stated therein that it was impossible to produce the policy for the purpose of having such indorsement made. But it is now alleged, and not denied, that at that time the policy was in the hands of the attorney above referred to, who declined and refused to surrender it, alleging that it had been assigned to him by the insured. By whom the demand upon him to surrender the policy was made, whether the insured or Lyter, does not appear.

After Barner’s death, the beneficiaries by their guardian brought suit upon the policy, whereupon the company obtained. leave to pay the money into court, and later an issue between them and Lyter was awarded “ to determine the party entitled to receive the said fund.” The. court, in a well-considered opinion, held that no legal change of beneficiary was made by the insured, and therefore awarded the money to the children. No objection has been raised on this appeal as to the form of the issue, or as to the regularity of the proceedings which terminated in a judgment in favor of the plaintiffs in the issue, and we shall raise none. We assume that the parties assented to a disposition of the ease by the court upon the facts averred in the pleadings.

Where the insured designates another person as beneficiary the right of the latter, as a rule, at once becomes vested so that it cannot be disturbed by assignment or will, or in any way without his consent, unless the right to make a new appointment is reserved by the terras of the policy itself, or by the regulations of the company subject to which the policy is issued, or by provisions of law: Richards on Insurance, sec. 86. This doctrine is supported by the great weight of authority : 2 May on Insurance, 4th ed., secs. 390, 391; Entwistle v. Travelers Ins. Co., 202 Pa. 141.

Allusion is made to the -Act of April 15, 1868, P. L. 103, which provides that a policy upon the life of a person, taken for the benefit of his wife or children or dependent relative, “shall be vested in such wife or children or other relative, full and clear from all elaims of the creditors of such person.” As was said in -Kulp v. March, 181 Pa. 627, this statute gives plausibility to the contention “ that the policy of our law favors such transactions, even where the rights of creditors may be affected; ” but we fully concur with the appellant’s counsel in the conclusion that where the right to change the beneficiary is reserved by the terms of the policy, there is nothing in the act of 1868 to prevent Mm from substituting a creditor for a dependent child as beneficiary. Whether or not the right to change the beneficiary would be affected by the fact that the premiums were paid by him is a question we are not called upon to consider. ■

As to the right to object to an attempted change of beneficiary upon the ground that all the formalities prescribed by the policy have not been observed, a distinction is recognized between the company and the beneficiary originally named in the policy. Without undertaking to state a general rule that will apply to all cases, we think it safe to say that where the provision as to such formalities is exclusively for. the benefit of the company, and the company, waiving its right to raise the objection, takes the position of a stakeholder, such"noncompliance is not necessarily fatal to the claim of the new beneficiary in an issue between him and the original beneficiary who was a mere volunteer. This, as we understand the case, is the doctrine of Penna. R. R. Co. v. Wolfe, 203 Pa. 269, in which it was held that when a member of a railroad beneficial association appointed his sister beneficiary in the manner provided by the rules of the association, and subsequently married after having made an antenuptial agreement by which, in consideration of the marriage, he agreed to make his wife the beneficiary instead of his sister, and died before making the substitution, the wife, and not the sister, was entitled to the fund which the association, waiving its rights, had paid into court. See also Donithen v. Independent Order of Foresters, 209 Pa. 170 ; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225. The foregoing result was reached by applying the principle that equity will treat that as done which ought to be done ; but the point for which we cite the case is the recognition of the distinction between the association and the beneficiary as to the right to object that the rule of the association had not been complied with. It was thus expressed by the late Justice Dean: “Nor does the failure to have the wife’s name inserted as the beneficiary in the certificate or on the books of the association affect her right, as against a mere volunteer. The rule is for the protection of the association; if it waives its rights or does not claim them, a third party cannot take its place. It would be conclusive in favor of the association ; it is only a fact tending to négative an antenuptial contract, as between the widow and sister.” The reasoning of the opinion tends to this conclusion, that the provision of the policy under consideration, so far as it requires the production of the policy and the indorsement thereon of the change of beneficiary, is for the protection of the company, and may be waived by it. If, therefore, the sole objection to the claim of Lyter, in the .issue between him and the beneficiaries named in the policy, were the omission to have the alleged change of beneficiary indorsed on the policy, we do not say that it would be fatal.

But it is to be borne in mind, that the burden of proving the intent of the insured to revoke the designation of his children as beneficiaries rested on the claimant; the company’s assumption of a neutral position cannot give the paper under which he claims the effect of a revocation of the designation unless it was so intended by the insured. That there are expressions in the paper which are consistent with, and, perhaps, tend to show such intention cannot be disputed, but they are also consistent with what the paper purports to be — an attempted assignment. It bears evidénce on its face that it was not drawn hastily, nor by one unskilled in such matters. It was evidently drawn with care, and by one who knew the technical meaning and effect of the words employed. The requisition of the policy as to change .of beneficiary is very simple, and it seems highly probable that some allusion would have been made to it, if that was the purpose intended to be accomplished by the paper. But none of its language purports to be a request to be filed with the company for such change; while great care is exhibited in expressing- the intent of the insured as to the former assignment, and to prevent its operation, the subject of change of beneficiary is not mentioned; the paper is not addressed to the company; nor does it affirmatively appear in the paper itself, or aliunde, that the insured intended it to be filed with the company;' nor is it distinctly alleged . that the duplicate was forwarded to the company by his subsequent direction. In conclusion, neither the paper itself; nor the action of the insured with reference thereto, exhibits a clear intent on his part to exercise the right reserved by the terms of the policy to have his creditor substituted, eo instanti, for his children as beneficiary, or to .do more than to transfer such right as he could bj' a bare assignment. And, in the absence of such intent, it is impossible to give an assignment of the policy,-in payment of or as collateral security for a pre-existing debt, the effect of a change of beneficiary in the mode provided by the policy, upon the ground that equity looks upon that as done which ought to be done. In strict law the right to the fund is in the beneficiaries; and as it has not been clearly shown that the assignee has a superior right in equity, the fund was properly awarded to the former.

■ Judgment affirmed.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Commonwealth, Appellant, v. Luckey.

      Constitutional law — Summary convictions — Appeals—Act of April 22, 1905, P. L. 284.
    The Act of April 22, 1905, P. L. 284, entitled “An Act to amend an Act entitled ‘An Act relating to appeals in cases of summary convictions,’ approved the 17th day of April, a. d. 1876, providing for the entering of security on appeal on summary conviction,” is unconstitutional because (1) it violates article V, section 14, of the constitution, inasmuch as it deprives the appellate court from allowing or refusing an appeal in cases of summary conviction; and (2) because it violates article III, section 3, in not clearly expressing in its title the provision depriving the appellate court of its discretion in the allowance or refusal of appeals in cases of summary conviction.

      Appeals — Interlocutory order — Quashing appeal.

    Where the defendant in a summary conviction takes an appeal under the act of April 22, 1905, but subsequently petitions the court of quarter sessions for the allowance of an appeal nunc pro tunc under the Act of April 17, 1876, P.-L. 29, and this application remains undisposed'of, an appeal subsequently taken by the commonwealth, from an order refusing to strike off defendant’s appeal,'will be quashed as an interlocutory order from which no appeal lies.
    Argued April 9, 1906.
    Appeal, No. 6, Jan. T., 1906, by plaintiff, from order of Q. S. Monroe Co., Dee. T., 1905, No. 15, discharging rule to strike off appeal in case of Commonwealth v. T. B. Luckey.
    Before Rice, P. J., Porter, Henderson, Morrison, and Head, JJ.
    Appeal quashed.
    Rule to strike off appeal. Before Staples, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      A. Mitchell Palmer, with him Claude C. Shull, district attorney, for appellant.

      R, L. Burnett, for appellee, filed no printed brief.

      October 5, 1906 :
   Opinion by

Porter, J.,

The defendant was, in a summary proceeding before a justice of the peace, tried and, .on October 24, 1905, convicted and fined for maintaining and operating an unlawful device for the taking of fish. He, on October 28, 1905, entered into a recognizance for his appearance at the next court of quarter sessions of Monroe county, and on October 31, 1905, the transcript of the record of the justice of the peace was filed in the office of the clerk of said court. The defendant, on November 11, 1905, presented his petition to the court of quarter sessions of Monroe county setting forth his summary conviction before the justice on October 24, that he had on October 28, 1905, entered into his recognizance with surety, before the justice of the peace, for his appearance at the next court of quarter sessions, and that his appeal from the sentence was perfected under the provisions of the Act of April 22, 1905, P. L. 284, which he was then advised and believed was the proper procedure; that since the taking of the said appeal the petitioner was advised that there was serious doubt as to the constitutionality of the aforesaid act, and he therefore prayed the court to allow him, for the above reason, to take an appeal in the said case and file the same in the said court of quarter sessions, with the same force and effect as if the said appeal had been taken within five days from the date of said conviction, as provided by the Act of April 17,1876, P. L. 29. This petition did not allege any circumstance to indicate oppression, corruption or disregard,of law on the part of the magistrate, nor that there was any irregularity in the proceedings, nor did it aver that- the defendant was not guilty; it did not, in other words, attempt to show cause why the appeal should be allowed. The court granted a rule to show cause why the appeal should not be allowed nunc pro tunc, which rule remains undisposed of. The commonwealth, on January 20, 1906, presented a petition averring the regularity of the proceedings before the justice, and moved the court to strike off the appeal upon the ground that the Act of April 22,1905, P. L. 284, is unconstitutional, and that the appeal of .the defendant had not been allowed by the court of quarter sessions, for cause shown, as required by article Y, section 14, of the constitution of the state of Pennsylvania. The court granted a rule on the defendant to show cause why the appeal should not be stricken off, which rule the court,' on January 29, discharged. The commonwealth appeals from the order to strike off the appeal.

The opinion filed by the learned judge of the court below, on discharging the rule to strike off the appeal, puts this action upon the ground that the act of 1905 is constitutional, and that under its provisions the defendant in any case of summary conviction is now entitled to an appeal as a matter of right, without allowance by the court of quarter sessions. The reasons which he gives in support of this conclusion may thus be briefly stated in his own language; “The provision of the constitution for an appeal in cases of summary conviction as above stated, had for its purpose the protection of the right under and subject to special regulations, and cannot in any sense be considered a restriction or prohibition on the legislature from enlarging such right. . . . The intention of the act was to give to every defendant convicted in an action of summary conviction, the right of trial in the court of quarter sessions of the peace, as of course, and not simply when allowed by the appellate court. It had this power.” The opinion of the learned judge as to the intention and effect of the act of assembly is -certainly correct, if that act is valid. We cannot, however, assent to his view of the purpose, force and effect of the constitutional provision.

A constitution is a plan or frame of government, which lays down certain fundamental principles, according to which the several departments it calls into existence are to govern the people; all auxiliary rules which are necessary to give effect to these principles must of necessity come from the legislature: Commonwealth v. Maxwell, 27 Pa. 444. The constitution defines the powers intrusted to and the duties imposed upon the several branches of the state government. The provision of the constitution now in question, article V, section 14, is in these words : “ In all cases of summary conviction in this commonwealth, or of judgment in suit for a penalty before a magistrate, or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or judge thereof, upon cause shown.” This section is embodied in the article which refers to the judicial power and the organization of the courts of the commonwealth, and this particular provision relates to judicial procedure in a certain class of cases. Prior to the adoption of the present constitution there were many cases in which an appeal was by law allowed in actions for penalties, but there were also many in which the judgment of the justice, whether upon á summary conviction or an action for a penalty, was final. This want of uniformity in the manner of enforcing penal statutes and ordinances attracted the attention of the constitutional convention and led to the adoption of the provision in question. . The convention, subject to the approval of the people, might have granted the appeal as a matter of right, and designated the court to which it should be taken, or it might have provided that neither party should have the right to appeal in such cases; but it did neither of these things. What it did do was to provide that either party may appeal, subject to certain express regulations and restrictions. The section expressly gave to the legislative branch of the government the power to designate the courts to which appeals might be taken by either party in this class of cases, and inferentially it imposed upon .that branch of the government the duty to so designate the courts ; but it at the same time vested the power to allow the appeal in the court, and upon the judi.eiary it imposed the duty of inquiring into the sufficiency of the cause shown. The constitution in express terms makes the question whether an appeal shall be allowed, from the judgment of a court not of record, in any particular case of summary conviction, or action for a penalty, a judicial one to be determined by the court to which the appeal lies. If the position of the learned judge of the court below could be sustained, and it should be held that the constitution simply granted to parties a restricted right of appeal, leaving the legislature free to strike down the restrictions, and “ enlarge the right,” then in all those cases, of actions for penalties, in which an appeal was allowed prior to the adoption of the constitution, that right would remain unaffected by the constitutional provision, for there would be no inconsistency between the constitutional provision and the earlier statute. That question has, however, been squarely decided the other way. In all those cases, within the classes referred to by the constitutional provision, in which an appeal had been allowed by pre-existing laws, the effect was to deprive the parties of an appeal as a matter of. right, and make it dependent upon allowance by the appellate court: McGuire v. Shenandoah, 109 Pa. 613 ; Commonwealth v. Eichenberg, 140 Pa. 158; Commonwealth v. McCann, 174 Pa. 19; Commonwealth v. Menjou, 174 Pa. 25. In those cases in which an appeal had been allowed by law prior to the constitution, as the court to which the appeal should be taken had already been designated by law, the party who by force of the constitutional provision had ceased to be entitled to an appeal as a matter of right, might under the provisions of the constitution have applied to the proper appellate court and shown cause for the allowance of his appeal. We are not dealing with the power of the legislature to change the mode of trial in the appellate court after an appeal has by that court been allowed, upon cause shown, from a court not of record. The constitutional provision in question deals only with the right of' one who desires to appeal, to take his case into the appellate court, without showing cause, and without an allowance of the appeal by the appellate court. The pre-existing laws, granting the right of appeal without an allowance by the appellate court having been held to be inconsistent with thé provisions of this section of the constitution, it necessarily follows that the Act of April 22, 1905, P. L. 284, is also inconsistent with the constitutional provision, and for that reason invalid.

The act of 1905 offends, also, against article III, section 3, of the constitution: “No bill except general appropriation bills shall be passed, containing more than one subject, which shall be clearly expressed in its title.” The 'title of the act is “ An act to amend an act, entitled ‘An act relating'to appeals in cases of summary conviction,’ approved April 17, 1876, providing for the entering of security on appeal on summary conviction.” The act of 1876 had been designed to carry into effect the provisions of the constitution; it designated the court of quarter sessions as that to which appeals should be taken in summary conviction, “ upon allowance of the said court of quarter sessions, or any judge thereof, upon cause shown” that act strictly complied with the provisions of the constitution, and made the appeal subject to allowance by the appellate court. The act of 1905 provided : “ That in all cases of summary conviction in this commonwealth, before a magistrate or .court not of record, the defendant may, within five days after such conviction, appeal to the court of quarter sessions of the county in which such magistrate shall reside, or court not of record shall be held, upon entering into good and .sufficient recognizance, with one or more sureties, to answer said complaint, on a charge of misdemeanor, before said court.” This act, which instead of designating the court to which either party might appeal, upon allowance of the appeal by the appellate court, upon cause shown, took away from the commonwealth all right of appeal, and attempted to take away from the court the power conferred upon it by the constitution to pass upon . the sufficiency of the cause shown, and allow or refuse the appeal. There was nothing in the title of the act that could have suggested that any of these things was within the purpose and effect of the proposed legislation. The act of 1905 being entitled an act to amend the act of 1876, relating to appeals in-cases of summary conviction, gave notice of its general purpose, but when it went on to declare that it was an amendment “ providing for the entering of security on appeal on summary convictions,” it limited the notice to that particular feature of the subject, and diverted attention from the matters included within the body of the statute. As to it the title was not only defective, but misleading. That such a title fails to comply with the constitutional requirement, and that the legislation is invalid is too clear for controversy: Philadelphia v. Market Company, 161 Pa. 522; Commonwealth v. Samuels, 163 Pa. 283; Dailey v. Potter County, 203 Pa. 593; Road in Otto Township, 2 Pa. Superior Ct. 20.

The appellee has moved to quash this appeal upon the ground that the order appealed from is interlocutory, and that from it no appeal lies to this court. If the transcript had simply been filed in the court below, showing an appeal taken by the defendant before the justice, and -the commonwealth, without anything else upon the record, had moved to strike it off, we would have been inclined to overrule the motion to quash and reverse the order of the court below; for upon such a record nothing further could have lawfully been done in the court below, the appeal not having been allowed by the court. The record in the case shows, however, that the defendant several months before the commonwealth moved to strike off this appeal had presented his petition to the court below for the allowance of an appeal, nunc pro tunc, the court granted a rule on the commonwealth to show cause why the appeal should not be so allowed, and that rule remains undisposed of. Whether the petition of the defendant shows sufficient cause for the allowance of the appeal from the judgment of the justice, and whether the court below has power and would, under the circumstances, be justified in allowing the appeal nunc pro tunc, are questions still pending. When those questions have been disposed of and a final judgment reached, and not till then, the entire proceeding, including the action of the court upon the petition of the defendant, can be reviewed in the manner indicated by this court in Thompson v. Preston, 5 Pa. Superior Ct. 154 ; Commonwealth v. Hendley, 7 Pa. Superior Ct. 356; Commonwealth v. Yocum, 29 Pa. Superior Ct. 428; Commonwealth v. Ralston, 29 Pa. Superior Ct. 426. The record as presented does not show a final judgment, and the motion to quash must prevail: Yost v. Davison, 5 Pa. Superior Ct. 469 ; Anderson v. McMichael, 6 Pa. Superior Ct. 114; Drum v. Uplinger, 9 Pa. Superior Ct. 404; Rieseck v. Lanahan, 10 Pa. Superior Ct. 281; Wooden Ware Company v. Howe, 164 Pa. 85.

The appeal is quashed at the costs of the appellant. .


author: Head, J.,

text:
    Saylor v. Chartiers Coal and Coke Company, Appellant.

      Negligence — Mines and mining — Bituminous mines — Mine foreman— Ventilation — Failure to provide material — Question for jury.

    In an action against a coal mining company to recover damages for the death of plaintiff’s husband, a miner, caused by an explosion of gas in a bituminous coal mine, the ease is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence shows that the accident was due to the failure of the mine foreman to close up “cut throughs” that first became useless, and then dangerous, as the work progressed; that at the time of the explosion there was absolutely no material on hand, as required by law, to enable the foreman or anyone else to keep the ventilating apparatus in a condition necessary for the safety of the miner; and that such material had been asked for by the foreman and promised by the superintendent more than three weeks before, but was not furnished until the day after the explosion.

      Argued April 9,1906.
    Appeal, No. 250, April T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1903, No. 116, on verdict for plaintiff in case of Elizabeth Saylor v. Chartiers Coal and Coke Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Kennedv, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Error assigned was. refusal of binding instructions for defendant.

      M. J. Hosack, with him Geo. M. Eosaelc, Roger Knox, and John D. Evans, for appellant.
    — Prior to any recovery off the part of the plaintiff, the burden of. proof was upon her to prove (1) negligence; (2) defendant’s negligence, and (3) that the negligence of the defendant was the proximate and direct cause of the injury complained of: Johnston v. Youghiogheny River Coal Co., 183 Pa. 623; Pittston Coal Co. v. McNulty, 120 Pa. 414; Ford v. Anderson, 139 Pa. 261; Moules v. Canal Co., 141 Pa. 632.
    It is seen that if there was any failure to supply lumber for the purpose of brattioing, which failure is not at all proved on the part of the plaintiff, that the negligence was due to the mine foreman, and he being a fellow servant with the plaintiff’s intestate would bar any right of action upon the part of said plaintiff: Mansfield Coal and Coke Co. v. McEnery, 91 Pa. 185; Hall v. Simpson, 203 Pa. 146; Commonwealth v. Reynolds, 1 Kulp, 218; Redstone Coke Co. v. Roby, 115 Pa. 364.

      R. P. Marshall, for appellee, filed no printed brief.
    October 5, 1906 :
   Opinion by

Head, J.,

The learned counsel who argues for the appellant, in his printed brief fairly states the single question to be considered in this case in the following language: “ The assignments of error in this case raise practically but one question: Was negligence of the defendant company sufficiently proved by the plaintiff in the trial of this case to warrant the court in submitting the evidence to the jury ? ”

The business of mining coal in Pennsylvania has grown to such enormous proportions, it directly affects the lives of so many citizens and the prosperity, and happiness of their families, that our legislature has wisely determined to regulate and control many features incident to it by positive, statutory enactments. When, therefore, an action has been begun against a coal operator, alleging that the injury complained of was the result of negligence in relation to some matter covered by legislative regulation, a careful examination of the statute ought to enable us to determine, without serious difficulty, whether or not there has been any failure to obey the mandates of the law, and if there has been, where the responsibility therefor should properly rest.

The amended statement, in the present case, alleges that Jacob Saylor, the husband of the plaintiff, who was employed as a coal miner in the bituminous mine of the defendant, “was killed by reason of an explosion of gas in the aforesaid mine. The death of said Jacob Saylor was caused by reason of the negligence and carelessness of the said defendant in not properly ventilating said mine, and in failing to provide the mine foreman with proper material with which to keep the mine in such a condition that it might be properly ventilated, whereby gas accumulated in the same.”

Whilst it may be fairly inferred from the testimony that this mine belonged to the class in which gas was not regularly produced in dangerous quantities, and, as a consequence, the men were permitted to work with open lights, yet our lawmakers have not been unmindful of the well-known fact that, in every bituminous mine, there' is a constant possibility that small pockets of gas may be liberated at the face of the workings, which, if permitted to accumulate, would soon become dangerous. The means prescribed by la'w to obviate this danger is the system of ventilation which has for its object the keeping of a powerful current of pure air continuously moving past the working places. This current, thus constantly moving, would have a tendency to dissipate and carry away all such small quantities of gas as might be liberated, and thus prevent their dangerous accumulation.

The system of ventilation in use at this mine, as is shown by the testimony and illustrated by the blue print attached to the appellant’s brief, was simple, but, if properly maintained, would have doubtless been an adequate compliance with the pi'ovisions of the law. on that subject. In brief, it consisted of two parallel entries, a short distance apart, each proceeding from an independent surface opening to the face of the coal. One of these entries was called the main or face entry, the other the air passage. At or near the face they were connected by a cut through ” the coal from one to the other. A powerful suction fan was located at the surface opening of the air passage, which, when in operation, would draw to it all the air in that passage and thus have a tendency to create a vacuum. The fresh air entering the main, entry at its surface opening and traveling along it would naturally rush through the “ cut through ” to fill the vacuum in the air passage, and thus the required current at the face would be produced. As, in an operating mine, the working places are being constantly pushed forward along the main or face entry, it is manifest that, to keep the current up with the moving miner, new “ cut throughs ” must be made, and as each new one is made the old one must be closed or “ bratticed,” in order that the new one may become effective.

The responsibility for the constant maintenance of this all-essential air current is imposed, by the law itself, in part upon the operator and in part on the mine foreman, an official whose duties, qualifications, etc., are prescribed by the act of assembly. Each of these persons has his own duties to perform, and each is responsible for any failure in that respect.

It has often been held that the mine foreman is an official over whose performance of his own duties the employer has no control, and for whose neglect he is not liable : Hall v. Simpson, 203 Pa. 146; Redstone Coke Co. v. Roby, 115 Pa. 364. If, therefore, the negligence alleged in the present case consisted in a failure to make “ cut throughs ” at tire proper places, or to close or brattice the old ones so as to carry the. air current past them, the necessary material therefor having been provided, or to operate the fan, or to make a daily examination of the working places, etc., the performance of all which duties is cast, by law, on the mine foreman, the case of the plaintiff could not stand. But it could hardly be contended that it was the duty of the mine foreman to provide the fan or the machinery to run it, or to furnish the material necessary for either the construction or maintenance of any part of the ventilating apparatus. Section 1 of article IV of the act of 1893, P, L. 52, provides : “ The operator or superintendent of every bituminous coal mine .... shall provide and hereafter maintain ample means of ventilation for the circulation of air through the main entries, cross entries and all other working places, to an extent that will dilute, carry off and render harmless the noxious or dangerous gases generated in the mine.” Section 1 of article VII provides : “ It shall be the duty of the superintendent, on behalf and at the expense of the operator, to keep on hand at the mines at all times a full supply of all materials and supplies required to preserve the health and safety of the employees, as ordered by the mine foreman and required by this act.” We cannot escape the' conclusion that the failure of the operator to do what he is thus expressly enjoined to do by the law, would be an act of negligence for which he would be responsible, and it is precisely such an act of negligence that is declared on in the statement already quoted from. Was there sufficient evidence of a failure on the part of the operator “ to provide and maintain ample means of ventilation,” or “ to keep on hand at all times a full supply of all materials and supplies required, as ordered by the mine foreman,” to warrant the court in submitting that question to the jury?

Charles McDonald, a man of many years’ experience in mining coal, who was in the vicinity of the mine at the time of the explosion and entered the mine with a party almost immediately thereafter, testified as follows (App., page 50) : “We closed up two break-throughs before we got to the Mikus entry, and then closed up the Mikus entry. We closed them up to carry the ventilation and fresh air to the face of the main entry. Q. Did you close up any after you passed the Mikus entry? A. Yes, sir. Q. How many? A. Two; and the third one we left open to let.the air return to the return airway. Q. The last one ought to be left open ? A. Yes, sir.” On page 51: “ Q. 'How long before this accident had you been up this face entry? A. About twenty days, or maybe twenty-one. Q. Had these break-throughs ever been closed up — the ones you closed after the explosion ? A. There was no indication of it. Q. Could you have seen it if there had been? A. Yes, sir. Q. No trouble about seeing that? A. No, sir.” On page 52: “ Q. You say these three had never been closed? A. No, never had been closed; if they had, there would have been indications of it.” Having testified on page 50 that he had sent to the store of the Pittsburg Coal Company to get brattice cloth to close up the “ cut throughs ” after the explosion, the witness on page 54 goes on : “ Q. What did you do at this mine, if anything, before you sent to the Pittsburg Coal Company for this canvas ? A. Called for material, and the fire boss came and we started to put up a brattice and found one board sixteen feet wide. That was all the material on hand.” Finally, on page 55, that he had heard the mine foreman, as early as the second or third of May, ask the superintendent for material, good heavy, strong lumber, for use in the mine to put the brattice in, and that the material was promised, but never arrived until the day after the explosion, which was May 26 or May 27.

Without going further into the evidence we have here testitimony, plain, positive and emphatic, tending to show that, at the time of the accident, there was and could have been no such current of air at the face of the coal as is contemplated by the law, because of the failure of the mine foreman to brattice and close up the “ cut throughs,” that first became useless and then dangerous, as the work progressed. That at/ the time of the explosion there was absolutely no material on hand, as required by law, to enable the foreman, or anyone else, to keep the ventilating apparatus in the condition so necessary for the safety of the miner. That such material had been asked for by the foreman and promised by the superintendent more than three weeks before, but was not furnished until the day after the explosion. If the witness was credible the jury could find from such testimony that there was a lamentable failure on the part of the company to obey, in an all-important matter, the express commands of the legislature. That such a failure would be an act of negligence we cannot doubt. We must conclude, therefore, that the learned trial court could do nothing else than submit the case to the jury, and the assignments of error, which attack only the fact of such submission, cannot be sustained.

Judgment affirmed.


text:
    Mapes v. Pittsburg Provision & Packing Company, Appellant.

      Negligence — Master and servant — Vice principal — Definition.
    A vice principal for whose negligence an employer will be liable to other employees must be either, first, one in whom' the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not mere authority to superintend certain work of certain workmen, but control of the business, and exercising no discretion or oversight of his own; or secondly, one to whom he delegates a duty of his own which is a direct personal and absolute obligation, from which nothing but performance can relieve him.
    Any person who so far represents the master as to exercise his authority in directing the places where the employees shall work, whether he be called the superintendent, foreman, or agent, will become in that respect and as to the performance of that obligation of the master, a vice principal.
    In an action to recover damages for personal injuries it appeared that the plaintiff was directly ordered to work in a place, which, under the conditions usually prevailing, would have been regarded as a reasonably safe one, but which by virtue of another direct order from another person employed by defendant, had been suddenly converted into a place of great risk and danger. The evidence showed that the person who gave the order was in general charge of the men, hiring and discharging them at pleasure, and that he was known as the foreman. There was also evidence that he was superintendent under the architect. Held, that the question whether such person was a fellow servant of the plaintiff, or a vice principal of the defendant, was for the jury.

      Appeals — Assignments of error — Extract of charge.

    An extract from the charge alleged to be error is not a proper basis for an assignment of error, where the extract taken in connection with the context, and the charge in general, was a proper instruction.
    Argued April 11, 1906.
    Appeal, No. 93, April T., 1906, by
    defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 730, on verdict for plaintiff in case of Harry P. Mapes v. The Pittsburg Provision & Packing Company.

      Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    The next question is, did this accident happen because of the ordinary fatalities which occur in the erection of a building, or on account of the negligence of somebody? There is evidence on both sides of that question. The negligence claimed here by the plaintiff is this : [That the ordinary and careful way to have hoisted this beam and put it in place, would have been to have kept it supported by the block and tackle until the beam was fairly settled and secured in its place, and that through the orders of Weston that support was taken away without the knowledge of the plaintiff; and that because of the taking away of that support it was a negligent act on his part, and this accident occurred.] [5] The evidence is somewhat conflicting upon that question as to whether the support was taken away or not, and whether the support was reasonably necessary to have sustained this beam. Those are the two questions which will determine whether the plaintiff is entitled to a verdict at all in this case. [If you find there was negligence on the part of someone, in ordering the support of this block and tackle to be taken away, and that the person who ordered that was a vice principal (I have instructed you what a vice principal is), then your verdict should be for the plaintiff.] [6]
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Errors assigned were (1-3) in submitting the case to the jury; (5, 6) above instructions, quoting them.

      Joseph Howley, with him W. A. Hudson, for appellant.
    — Every workman takes the risk of his employment, and if the danger increases in the progress of the work, that is a risk of the employment: Sykes v. Parker, 99 Pa. 465; Allexander v. Penna. Water Co., 201 Pa. 252; Price v. Lehigh Valley Railroad Co., 202 Pa. 176; Reese v. Clark, 146 Pa. 465; Wojciechowski v. Spreckles’ Sugar Refining Co., 177 Pa. 57.
    There is no negligence on the part of the defendant shown. This case comes clearly within the principle settled in many cases, that one who is erecting a building or other structure is not liable for accidents happening in the course of the erection, if he exercises ordinary care in selecting competent persons to do the work: Walton v. Bryn Mawr Hotel Co., 160 Pa. 3; Nuss v. Rafsnyder, 178 Pa. 397 ; Bemisch v. Roberts, 143 Pa. 1; Durst v. Carnegie Steel Co., 173 Pa. 162; Meyers v. Moorehead Bros. & Co., 28 Pa. Superior Ct. 503 ; Meixner v. Phila. Brewing Co., 210 Pa. 597.

      Meredith Tt. Marshall, with him Thos. M. Iíody P. Marshall, for appellee,
    cited: Schiglizzo v. Dunn, 211 Pa. 253; Geist v. Rapp, 206 Pa. 411; Butterman v. McClintic-Marshall Const. Co., 206 Pa. 82.
    October 5, 1906:
   Opinion by

Head, J.,

The first, second and third assignments of error may be considered and disposed of together, as they present but a single question, viz: Was the court below justified, under all the evidence, in submitting the case to the jury and refusing to give binding instructions in favor of the defendant ?

The defendant was engaged in making alterations and repairs in and about its buildings. To carry out the plans therefor, g. which had been prepared by an architect, it became necessary \to raise and secure in place, about fifteen feet above the floor, a number of long, heavy wooden beams. When properly in place each end of a beam would securely rest in an iron hanger and these hangers were attached to girders so that the weight of the beams would be supported. The plaintiff was a carpenter employed, with many other men, by the defendant and engaged in doing the work referred to, under the direction of one Weston, the extent of whose» authority and the nature of whose relations to plaintiff and defendant are important questions to be considered.

The testimony offered by the plaintiff tended plainly to prove that the method of handling these beams always used, with the single exception of the instance when the accident occurred, not only in this building, but in others where like work was being done, was to hoist them by the use of derricks and falls, which would carry the weight and hold and control the beam until its ends were securely lodged in the hangers. The derricks and falls were operated by gangs of men on the floor below, who were also under the immediate orders of Weston. When one of the beams had been raised to about the required place it was found that “ it was a little too long and fit too tight,” and, under the direct orders of Weston, four men, the plaintiff, Madden and two others, stepped out on the beam to sledge it into place. The plaintiff testifies that when he went out on the beam to execute this order he did not know that the support of the pulleys had been withdrawn, but supposed they still held it in accordance with the usual method. The force of a blow from the sledge, the weight of the men and of the beam itself, overcame the resistance caused by its wedging and it fell to the floor, the plaintiff falling with it and receiving the injuries of which he now complains. Alfred Madden testified that when Weston gave the order he went out on the beam along with the plaintiff to help sledge it into place, but says he heard Weston order the men below to loosen the falls, and, knowing the place he occupied would then become dangerous, he stepped off the beam just in time to save himself. Although he endeavored to warn the man beside him, the time was so short his warning was fruitless and the man fell. He says that probably only five or six seconds elapsed from the time Weston ordered the men below to loosen the^ blocks and tackle until the beam fell. Finally he testifies that,;, he never knew the support of the block and tackle to be withdrawn until the beam was in place, either before or after the accident, and that to have followed the method usually adopted “ would have insured safety.” Here, then, we have testimony from which, if credible, the jury could find that the fall of the beam and the consequent injury to the plaintiff were the direct result of the orders given by Weston. Who, then, was Weston ? To what extent, if at all, was the defendant responsible for any error of judgment or want of care on his part?

A number of witnesses testified that Weston was in general charge of the men, hiring and discharging them at pleasure. The plaintiff, on this subject, gave the following testimony (App., pages 6 and 7): “Q. You knew Mr. Comstock? Á. Yes, sir. Q. He was the man that had charge of the work? general charge? A. He was the architect. Q. He was the general superintendent ? A. No, sir, he wasn’t. Q. Mr. Weston was the foreman? A. Mr. Weston was superintendent under Mr. Comstock. Q. But Mr. Comstock had general supervision of the work? A. He-was the architect and drew the plans, and Mr. Weston executed them.” Mr. Madden testified that he worked there several months and that Weston seemed to have complete charge of the work and the men, hiring, discharging and directing the latter as he chose. A. L. Loeffet testified that Weston had complete charge of the work, “ but there was an architect over the job that was over him.” N. E. Cole testified that Weston had complete charge of the work and directed all the men.

With the conflict in the testimony, if any, either as to the immediate cause of the accident or the extent of Weston’s apparent authority, we have no concern whatever. Our duty is simply to ascertain whether or not the plaintiff offered testimony which, if believed and accepted by the jury, would warrant the verdict they have-found. It may be. noted here that the evidence fails to disclose, at any time in connection with this work, the presence or supervision of any executive officer of the defendant company higher in authority than Weston. It is true Mr. Comstock, the architect who drew the plans for the work, testifies that he had general charge of the construction for the company; but he was neither an officer nor agent of the defendant. This brings us naturally to the important inquiry in this case, namely, was Weston at the time the accident occurred and in relation to the situation in which the plaintiff was then placed, a vice principal for whose acts or omissions the defendant must answer, or was he but a fellow servant with the plaintiff, whose negligence'would be one of the risks assumed by the latter as an incident of his employment ?

It would be a uselessly burdensome task to undertake to review all of the cases in which our Supreme Court have undertaken to define a vice principal and to mark the essential characteristics which distinguish him in anj given case from a fellow servant with the plaintiff. In Lewis v. Seifert, 116 Pa. 628, a case fully argued by eminent counsel and carefully considered by the court, Mr. Justice Paxson thus describes a vice principal: “But there are some duties which the master owes to the servant and from which he cannot relieve himself except by performance. Thus, the master owes to every employee the duty of providing a reasonably safe place in which to work, and reasonably safe instruments, tools and machinery with which to work. This is a direct, personal and absolute obligation ; and, while the master may delegate these duties to an agent, such agent stands in the place of his principal, and the latter is responsible for the acts of such agent. And where the master or superior places the entire charge of his business, or a distinct branch of it, in the hands of an agent or subordinate, exercising no discretion or oversight of his own, the master is held liable for the negligence of such agent or subordinate: Mullan v. Phila., etc., Steamship Company, 78 Pa. 25 ; N. Y., L. E. & W. R. R. Co. v. Bell, 112 Pa. 400.”

In Prevost v. Citizens’ Ice, etc., Company, 185 Pa. 617, the same court, speaking through Mr. Justice Mitchell, says : “A vice principal for whose - negligence an employer will be liable to other employees must be either, first, one in whom the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not mere authority to superintend certain work or certain workmen, but control of the business, and exercising no discretion or oversight of his own: N. Y., L. E. & W. R. R. Co. v. Bell, 112 Pa. 400; or secondly, one to whom he delegates a duty of his own which, is a direct, personal and absolute obligation, from which nothing but performance can relieve him: Lewis v. Seifert, 116 Pa. 628, etc.”

Even if we were to consider only the class first mentioned in the case last cited, a strong argument could be made to show that Weston, in relation to the construction of the building of the defendant about which we are now inquiring, occupied the position of a vice principal because it is difficult to see, from the evidence, through what other channel the defendant exercised any discretion or oversight in relation to that work. If he was the only representative of the defendant, with whom the testimony brings us into contact, who appeared tó be exercising the discretion and oversight, as well as the authority, which are the attributes of the employer, why should he not be regarded as a vice principal ? But when we come to a consideration of the second branch of the rule laid down in Prevost v. Citizens’ Ice, etc., Company, 185 Pa. 617, which is but a restatement in other language of what had been declared to be the law in Lewis v. Seifert, we think a proper conclusion can be reached without serious difficulty. It was undoubtedly a duty imposed by law on the defendant to furnish to the plaintiff and all other servants and employees, a reasonably safe place in which to work. This was a direct, personal and absolute obligation from which there was no escape by the employer except by'performance of it. Any person who so far represented the master as to exercise his authority in directing the places where the employees should work, whether he be called superintendent, foreman or agent, would become in that respect and as to the performance of that obligation of the master, a vice principal. That the testimony offered by the plaintiff plainly pointed to Weston as the person who in this respect exercised the authority of the master and to this extent represented him, we think cannot be successfully disputed. It is not claimed that the plaintiff was in any degree guilty of any contributory negligence. If, therefore, Weston, by direct order, had sent the plaintiff to work in an unsafe and dangerous place without any knowledge of such danger on the part of the plaintiff, and the latter had suffered injury thereby, could it be successfully contended that Weston was but a fellow servant of the plaintiff and that the risk of such danger was bub the ordinary incident of the plaintiff’s employment for which the defendant could not be held responsible? But if, as in the present case, the plaintiff was directly ordered to work in a place which, under the conditions usually prevailing, would have been regarded as a reasonably safe one, but which, by virtue of another direct order from Weston, had been suddenly converted into a place of great risk and danger, according to the testimony, upon what principle can it be argued that the responsibility of the master vanished as suddenly as the danger came ? We are unable to arrive' at any other conclusion, under the testimony offered by the plaintiff, than that the plaintiff was ordered to work in a,' dangerous place, made so by the act and order of Weston himself, and, as a consequence, that the court was obliged to submit this question to the jury, and that there is in the testimony of the plaintiff sufficient warrant, in law and fact, for the finding that, in this respect and to this extent, Weston wras a vice principal for whose act the defendant must answer. The first three assignments of error are therefore overruled.

The fourth, fifth and sixth assignments complain of the manner in which the case was submitted in the general charge. As to the fifth assignment, we regard it as sufficient to say that it is not a fair extract from the charge of the court. The court did not undertake to instruct the jury, as the extract from the charge quoted in the assignments of error would seem to indicate, “ that the ordinary and careful way to have hoisted this beam and put it in place would have been to have kept it supported by the block and tackle until the beam was fairly settled and secure in its place.” The beginning of the sentence from which this extract is taken clearly shows that the court was but stating the claim of the plaintiff, in that respect, and there is but little to be gained by an attempt to convict the trial court of error by the presentation to an appellate court of. ta.t~a portion of a sentence taken from the entire charge.

The learned court below did not undertake in the charge to review the testimony on either side of the case. No points were presented craving special- instructions as to any portion of the testimony, and in the absence of a request for such instructions upon any particular part of the testimony we do not think the trial court can be reversed for a failure to call the attention of the jury particularly to the theory of the defendant, or the testimony in support of it. We regard the charge of the court, taken as a whole, as a fair submission to the jury of the real points in controversy, and the jury having found under the submission that Weston, in ordering the plaintiff to step out upon the beam and then in further directing the men below to remove the support of the block and tackle, was acting in the capacity of vice principal, and that these orders were the proximate cause of the injury to the plaintiff, the responsibility of the defendant necessarily follows.

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


text:
    Hottner v. Aachen and Munich Fire Insurance Company of Aix-la-Chapelle, Appellant.

      Insuro.nce — Fire insurance — Proofs of loss — Waiver—Local agent — Act of June 27, 1883, P. L. 165.
    Where a property insured against loss by fire under a standard policy is destroyed by fire, and the owner neglects to furmSh proof of loss to the company within sixty days as provided by the policy, or to the local agent who had countersigned his policy, within twenty days as provided by the Act of June 27, 1883, P. L. 165, he cannot excuse his lack of compliance with the covenant of the policy as to furnishing proofs of loss, by setting up a verbal promise made by the local agent to the effect that the latter would do whatever was necessary, and that the insured need do nothing.
    The requirement of the contract that, "within sixty days after the fire,” the insured must furnish proofs of loss to the company, is as important, as binding, as vital since the act of 1883 as before it. The insured may still take the whole of the time given him by the contract for furnishing proofs of loss, and select his own method of getting them to the company. He may deliver them in person to the home office, or select the officer or agent that he may deem the proper person to receive them; he may send them by messenger, by mail, or otherwise, and take the risk of his ability to prove, at the trial, that he did, in fact and law, furnish them to the company within the time prescribed. But he may also remove this question from the dangerous uncertainty incident to every investigation depending on human testimony, by filing his proofs with the local agent within twenty days after the fire. He is not obliged to comply with the requirements of his policy in the special and easy way provided by the act of 1883, but he must still comply with them unless such compliance has been waived by the company. Per Head, J.
    Argued April 16, 1906.
    Appeal, No. 79, April T., 1906, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1904, No. 188, on verdict for plaintiff in case of Nathan Hottner v. Aachen and Munich Fire Insurance Company of Aix-la-Chapelle, Germany.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Reversed.
    Assumpsit on a policy of fire insurance. Before Umbel, J.
    The facts are stated in the opinion of the Superior Court.
    - Verdict and judgment for plaintiff for $1,054.90. Defendant appealed.

      Error assigned was (6) refusal of binding instructions for defendant..

      W. J. Sturgis, with him W. E. Grow, for appellant.
    — Failure to furnish any proof of loss avoids the policy: Gould v. Dwelling House Ins. Co., 134 Pa. 570; Beatty v. Lycoming Mut. Fire Ins. Co., 66 Pa. 9; Everett v. Ins. Co., 142 Pa. 332; Whitmore v. Ins. Co., 148 Pa. 405; Freedman v. Fire Ass’n, 168 Pa. 249 ; Freedman v. Ins. Co., 175 Pa. 350; Penn Plate Glass Co. v. Ins. Co., 189 Pa. 255.
    Proof of loss may bemvaived, but it is incumbent on assured to establish the authority of the person making such waiver: Union Refining, etc., Co. v. Bushnell, 88 Pa. 89 ; B. & O. Employes’ Relief Assn. v. Post, 122 Pa. 579; Beddall v. Citizens Ins. Co., 28 Pa. Superior Ct. 600.
    The act of assembly of June 27, 1883, P. L. 165, does not change the law : Springfield Fire & Marine Ins. Co. v. Brown, 128 Pa. 392; Welsh v. London Assurance Corp., 151 Pa. 607.

      B. L. Robinson, of Robinson & McKean, with him A. E. Jones, for appellee.
    — The Supreme Court has held that the requirement that proofs of loss be furnished in a specified time may be waived in many ways : Freedman v. Providence Washington Ins. Co., 175 Pa. 350; Susquehanna Mut. Fire Ins. Co. v. Cusick, 109 Pa. 157 ; Universal Fire Ins. Co. v. Block, 109 Pa. 535.
    A compromise, an adjustment, a reference to appraisers is a waiver: Wagner v. Dwelling House Insurance Co., 143 Pa. 338; McGonigle v. Susquehanna Mutual Fire Ins. Co., 168 Pa. 1; Snowden v. Kittanning Insurance Co., 122 Pa. 502; Fritz v. Lebanon Mutual Insurance Co., 154 Pa. 384.
    The oral statement of an adjuster that no proofs were necessary was-held a v,¡fiver: Mix v. Royal Insurance Co., 169 Pa. 639.
    Whether the insurer has waived the requirement is a question for the jury : Dowling v. Merchants’ Insurance Co., 168 Pa. 234; Allegheny Insurance Co. v. O’Hanlon, 1 Walker, 359; 1 W. N. C. 33; Drake v. Farmers’ Union Insurance Co., 3 Grant, 325.
    October 5, 1906 :
   Opinion by

Head, J.,

The policy of insurance, on which this action is founded, indemnified the appellee against loss by fire on his stock of merehandise from October 20, 1908 to October 20, 1904. It had been countersigned and delivered by T. A. Jeffries, the local agent of the appellant company at Brownsville, Pa. It was of the usual form commonly known as a “ standard policy.” Its covenants were therefore mutual and the obligations it imposed on the insured were just as solemn and binding as the obligation of indemnity assumed by the insurer. Among the important covenants to be performed by the policy holder it was expressly stipulated that, in case of loss by fire, he would not only give “immediate notice” of such loss, but would “ within sixty days after the fire, unless such time is extended in writing by this company, render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire,” etc.; in other words, would furnish what has - become generally known as proofs of loss.” Such a stipulation in a policy covering a stock of merchandise has been repeatedly held to be a reasonable one for the proper protection of the insurer, and its performance, under another plain provision of the policy, to be a condition precedent to the right to maintain an action against the insurer for the.indemnity: Inland Ins. & Deposit Co. v. Stauffer, 33 Pa. 397; Welsh v. London Assurance Co., 151 Pa. 607. Of course it is true of a contract of insurance, as, of every other agreement entered into by competent persons, that they who made it may unmake it, may modify, alter or - abrogate it, and as a consequence, either party to it may waive the performance by the other of a covenant or condition inserted in the contract solely for the benefit of the first. Or, without attempting to expressly waive such a provision, a party to a contract may so conduct himself as to make it inequitable to permit him thereafter to claim the benefit of it; in other words, the law, without his assent, abrogates a certain provision of .his contract as a sort of penalty, when it becomes necessary to prevent his forging, out of his own acts or • declarations, a weapon that would enable him to unfairly gain an advantage over the other party. But the power to waive for himself, the liability to have waived by the law, an important provision in a contract, can be attributed only to the party who originally made it. If the party be a corporation it must act through some individual representative lawfully exercising the corporate powers in that behalf. But the acts of such representative, as of the agent of an individual, in order to bind the principal, must be confined within the powers actually or constructively conferred upon him.

In the present case there was an entire failure on the part of the insured to furnish any proofs of loss within the specified time.' This failure the appellee concedes would be fatal to his right to recover if the appellant has not lost its right to insist on a compliance with the provision of the contract already quoted. The plaintiff must therefore assume the burden of showing that the company, through some duly authorized representative, had either waived material provisions in the' contract or estopped itself from demanding compliance with their obligations by the insured.

It is not contended by the plaintiff that he ever had any correspondence with the company at its home office or that he ever saw or spoke to any officer, general agent, adjuster or other person specially delegated to adjust and settle his loss. To excuse his own nonperformance of the plainly expressed covenants of his contract the insured relies solely upon a verbal promise of the local agent that he would do whatever was necessary and that the insured need do nothing. There was no agreement of any kind indorsed on the policy to in any way vary its terms and no attempt made to prove that the powers of the agent, conferred on him by the company, were other or greater than those usually possessed by the local soliciting agents of insurance companies. If the insured, under such circumstances, chose to rely on the vol untary promise of the local agent as his warrant for expunging from his contract some -of its important provisions and ignoring the warnings therein given against such attempts to alter or waive the terms of the writing on which his claim is founded, he placed himself in the position described by Agnew, J., in Marland v. Ins. Co., 71 Pa. 393, thus: “ If deceived or lulled into security it was not by any act of the company, but by trusting to the mere opinion of one who had no authority to bind the company by any such expression.” We do not deem it necessary to advert to the serious results to the enormous business of fire insurance that would flow from a declaration, by our courts of last resort, that the material covenant's, inserted in a written contract in such universal use that its very form has crystallized into a fixed and definite shape, could be waived or their performance be dispensed with, at the will or pleasure of a mere local agent who, neither by the terms of his commission nor of the contract, is authorized to deal with such matters. We think it sufficient to say that, under the well-established rules of law regulating the liability of a principal for the acts of an agent, and under the many decisions of this and the Supreme Court in cases like the present, among which we may cite Pottsville Mut. Fire Ins. Co. v. Minnequa Springs Improvement Co., 100 Pa. 137; Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. 402, and Beddall v. Citizens Ins. Co., 28 Pa. Superior Ct. 600, such a proposition would be untenable, unless the law in this respect has been changed by the Act of June 27, 1883, P. L. 165. It ought not to be necessary to add, in this connection, that we are not now considering the powers of an adjuster, specially delegated to settle a particular loss, as in Mix v. Ins. Co., 169 Pa. 639 ; nor with a case where the insured has, in good faith, made an attempt, although a faulty one, to furnish the required proofs of loss as in Gould v. Ins. Co., 134 Pa. 570 ; and therefore these cases are not to the point.

But it is earnestly contended by the learned counsel for the appellee that, since the passage of the act of 1883, the powers of a local agent have been thereby so enlarged that, as to every covenant in the contract of insurance relating to giving notice of the fire and making proofs of loss, he has been legislatively clothed with all the powers of the company, and may speak and act with the same authority and responsibility as if he were dealing with a personal contract made by and for himself. If he choose to formally waive all the provisions of a written contract on these subjects, at his word they vanish into thin air; if he elect to act as if such provisions did not exist, the law will turn a deaf ear to the demand of the contract itself that they must be complied with. The first point for charge presented by the plaintiff, and the argument at bar in support of it, indicate this to be the real ground on which his claim to recover is rested.

If, in fact, the legislature has thus undertaken to intervene between a principal and its own agent and say to the former, It matters not what powers you may conclude to confer upon or withhold from the latter, he shall, as to certain subjects, possess and exercise all the powers of a principal; no matter how solemnly you, and one who contracts with you, may stipulate, in a written agreement, that the performance of the obligations therein imposed on him shall not be waived or dispensed with by your local agent, a higher law than the law of the contract expunges from it all such provisions — the constitutionality of such an enactment would at once challenge our attention.

When, however, we examine the act referred to, we are unable to discover therein any adequate foundation for the superstructure thus sought to be erected on it. The language of the act manifests no intention, on the part of the legislature, to interfere with the respective rights or obligations of either party to a contract of insurance. The contract, since the passage of the act as before it, requires the insured to give “ immediate notice ” of any loss by fire. The act provides that if, within a fixed number of days, he give such notice to the local agent who countersigned his policy, his compliance with his contract, in that respect, is complete and is no longer a question for judicial determination. The requirement of the contract that, “ within sixty days after the fire,” the insured must furnish proofs of loss to the company, is as important, as binding, as vital since the act of 1883 as before it. The insured may still take the whole of the time given him by the contract for furnishing proofs of loss, and select his own method of getting them to tire company. He may deliver them in person to the home office, or select the officer or agent that he may deem the proper person to receive them; he may send them by messenger, by mail or otherwise and take the risk of his ability to prove, at the trial, that he did, in fact and law, furnish them to the company within the time prescribed. But he may also remove this question from the dangerous uncertainty incident to every investigation depending on human testimony, by filing his proofs with the local agent within twenty days after the fire. He is not obliged to comply with the requirements of his policy in the special and easy way provided by the act of 1883: Springfield Fire & Marine Ins. Co. v. Brown, 128 Pa. 392; Welsh v. London Assurance Co., 151 Pa. 607. But he must still.comply with them unless such compliance has been waived by the company.

The filing of proofs of loss is not, of course, a condition precedent to the existence of the primary contract of indemnity, but is a step that must be taken before a right of action, on such primary contract, can become complete.

Where a person insured seeks the aid of a court to enforce his contract of indemnity, it is just as necessary for him to show compliance with such a condition of his policy, as to show that he has brought the defendant within the jurisdiction of the tribunal whose powers he invokes. If the legislature comes to his assistance, in respect to this step in his proceeding to recover, by providing that notice of his suit may be served on the local agent of the defendant, it would hardly be contended that there was implied, in such an enactment, any change in the contractual relations of the parties to the policy, or any grant of power to the local agent, because of his designation as the recipient of such notice, to waive important provisions of the contract or estop his principal from demanding compliance with them. Thus it appears that the contract imposes on the insured, after a fire has occurred, the obligation to do two particular and plainly specified acts. As to one of them, the time within which it must be done, as to both of them, the exact manner in which they are to be done, is left uncertain. The legislature offers to the insured a plan by which all of this uncertainty may be done away with, and the contract, in these respects, be carried into effect with ease and certainty. Such a construction of the act gives effect to its letter and reasonable intendment without imputing to the legislature the purpose of impairing, even by implication, the rights and obligations of the contracting parties created by themselves.

In the present case the insured did not comply with the requirements of his policy, either in the method prescribed by the act of 1883, or in any other way. He does not claim to have done so. He stands on the proposition that he was excused from doing so by the local agent, whose authority, in this respect, is sought to be drawn from the act of 1883. We cannot so construe the act. The plaintiff must stand on the contract he voluntarily made, and it is binding on us as it is on him. He has not discharged the obligations it imposed on him. He has not shown any release from such obligations by the company or anyone having authority to act for it in that behalf. We but declare the law of the contract itself in holding that the learned trial court should have affirmed the defendant’s point for binding instructions. The sixth assignment of error is sustained.

Judgment reversed.


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    Newmyer, Appellant, v. Davidson.

      J udgment — Contract—Sale—Evidence.
    Where the owner of a judgment assures a purchaser that there is a certain amount due upon the judgment, and agrees to produce a note for an amount stated as evidence of part of the original indebtedness; and if he fails to do so to refund the money, and he fails to produce the note, the purchaser is bound within a reasonable time to demand the purchase money back, and tender a reassignment of the judgment; and if he fails to do so until after the death of the seller, several years after the sale, he cannot thereafter recover the amount of the note which had not been produced by the purchaser.
    Argued April 17, 1906.
    Appeal, No. 1, April T., 1907, by plaintiff, from judgment of C. P. Fayette Co., Sept. T., 1903, No. 340, for defendant non obstante veredicto in case of Mary D. Newmyer v. Jean H. Davidson, Executrix of William A. Davidson, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit for an amount alleged to be due on a note. Before Umbel, J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      D. M. Eertzog, with hvca.Ndward Campbell, for appellant.

      Nathaniel Ewing, for appellee, filed no printed brief.

      October 5, 1906 :
   Opinion by

Porter, J.,

The plaintiff alleged in her statement, as the ground upon which she was entitled to recover, that on March 26,1898, in a certain business transaction in which she was then engaged with the decedent, William A. Davidson, “ and the said dealings, involving many matters not relevant to this action, proceeded satisfactorily to the plaintiff, to the close thereof with the exception of the subject-matter of this action, namely, a certain promissory-note of the said- P. S. Newmyer to the said William A. Davidson, for the sum originally of $750, bearing interest from August 28, 1897, which note the said William A. Davidson then and there averred, asserted and declared, was in the possession of him the said William A. Davidson, and the full amount thereof was then due, owing and payable by the said P. S. Newmyer to him the said William A. Davidson, but that he the said William did not then and there produce the said note and deliver it to the plaintiff because it was at that time in a distant city, and not obtainable until the said William should return to his own residence; whereupon the said William declared and promised that if the said plaintiff would then and there pay him the amount of the said note of the said P. S. Newmyer, he the said William would upon his return to his residence transmit the said note to the plaintiff; relying upon which assurance and assertion of the said William the plaintiff on March 26, 1898, paid to the said William the whole amount thereof with interest, namely, seven hundred, seventy-two and fifty one-hundredth dollars, as above stated. Yet so it is, that while such a note of the said P. S. Newmyer to said William A. Davidson, as is above described, did once exist, and was rightfully in the possession of the said William A. Davidson, at the time of said dealing as aforesaid, the said note was not in the possession of said William A. Davidson, but had been long before paid, and lifted from the said William A. Davidson by the said P. S. Newmyer.” The plaintiff failed to prove that a note of the amount and date stated had ever existed, or that Newmyer had ever paid it or that Davidson had ever agreed to deliver it to her. The fatal variance between the pleadings and the proof alone was sufficient to defeat a recovery, and this appeal is without merit.

Had the facts of which the plaintiff offered evidence at the tidal been properly set forth in the statement, the plaintiff would still not have been entitled to recover. William A. Davidson, since deceased, was the plaintiff in a judgment against P. S. Newmyer, entered upon a judgment note dated August 28, 1897, at No. 414, September Term, 1897, of the court of common pleas of Fayette county, for $4,750, with interest from August 28, 1897 ; this judgment was assigned of record, on March 26, 1898, to Mary D. Newmyer, the plaintiff. The facts upon which the plaintiff relies to recover grew out of and were incidental to the sale and assignment of this judgment. The only witness to the transaction was a son of the plaintiff. He testified that he was present at the time of the negotiation, and that the plaintiff, on March 26, 1898, purchased the judgment in question and another judgment from William A. Davidson; that she paid for said judgment the sum of $4,750 with the accrued interest, and that the payment was made by the settlement of mutual account between the parties. He testified that there was a discussion between the plaintiff and Davidson as to the amount which was due on this judgment; that Mrs. Newmyer claimed there was only $4,000 due on that judgment, and that Davidson alleged there was $4,750 due; that the judgment note had been given to secure two notes; that he, Davidson, had one note of P. S. Newmyer for $750, which he did not have with himThey had quite a long talk before the thing was disposed of, and he finally said if he could not produce the note he would refund the money.” The witness stated that he himself had upon three subsequent occasions asked William A. Davidson for this note, once in the spring of 1898, once in the summer of the same year, and the last time in the following December or January, and that Davidson said he had not found it and could not account for what had become of it. The witness testified on cross-examination that the only contention between Mrs. Newmyer and Davidson was as to the amount due on that judgment, whether it was $4,000 or $4,750. There was no evidence from which an agreement could be inferred on the part of Davidson to deliver a note for $750 to Mrs. Newmyer. He did not sell her a note for $750 and did not undertake to do so. All that can be inferred from the. testimony is that he assured Mrs. Newmyer that the amount for which the judgment was entered, $4,750, was due, and that he agreed to produce a note for $750 as evidence of part of the original indebtedness, and that if he failed to do so he would refund the money. What money was he to refund ? Manifestly the purchase money that he received for the judgment, in which case he would have the right to have the judgment reassigned to him. Accepting as true the testimony that Davidson agreed to refund the money jn case he failed to produce the evidence referred to, the plaintiff would have been bound to assert that right within a reasonable time and tender a reassignment of the judgment. She retains to this day all the fruits of her contract, all that Davidson agreed to deliver to her, and her judgment against P. S. Newmyer stands upon the record unquestioned for $4,750.

Davidson died in 1901, and two. years later this action was brought against his estate. The appellant retains the judgment for $4,750 against P. S. Newmyer, which was sold to her by Davidson, and that judgment is conclusive as to the amount which Newmyer owes. Without offering to reassign any part of the judgment, she seeks to recover from the estate of Davidson $750 because he did not during his lifetime exhibit to her a particular part of the evidence of the original indebtedness. Her failure to rescind the contract during the three years which Davidson continued to live, was an unreasonable delay to assert her right to rescind,-and constituted a reaffirmance of the contract. Having elected to retain all that Davidson sold her, she is not entitled to recover for the breach of the mere collateral agreement to produce the $750 note, without proof that she was damaged by said breach. There was no evidence in the case which warranted a recovery by the plaintiff.

The judgment is affirmed.


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    McLain v. West Washington Borough, Appellant.

      Road law — Change of grade — Boroughs—National road — Act of May 24, 1878,P. L. 129. ■ '
    A borough is authorized to change, within the borough limits, the grade of a road which extends beyond the line of the borough, and which was not laid out by the authorities of the borough; and in such a case, an owner of property injured may have the damages ascertained under the provisions of the Act of May 24, 1878, P. L. 129. This rule applies to a street in a borough which is a part of the road known as the “National or Cumberland Road,” originally constructed by the United States Government.
    Argued April 18,1906.
    Appeal, No. 155, April T., 1906, by defendant, from judgment ’of C. P. Washington Co., May T., 1905, No. 232, on verdict for plaintiffs in case of J. R. McLain and D. M. Campsey v. West Washington Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Taylor, J.
    Defendant presented the following points :
    1. The National Pike running through the borough of West Washington, which was graded by the defendant borough and for the grading of which damages are claimed in this case, is a public highway belonging to the state of Pennsylvania and is not a street of said borough within the meaning of the act of May 24, 1878, relating to the collection of damages for changing the grade of the streets of a borough. 'Answer: Refused, under the undisputed evidence of this case. The parties, plaintiff and defendant, have carried on this proceeding under the act of May 24, 1878, from the presentation of the petition for viewérs under said act of assembly. [2]
    2. If the jury find from the evidence that the plaintiffs’ property abuts on what is known as the Cumberland road or the National Turnpike, and that the damages claimed in this case arose from a change in the grade of said National road or Turnpike within the limits of the said borough of West Washington in front of said property, then the verdict should be for the defendant, for the reason that the act of May 24, 1878, under which this proceeding is instituted, only applies to such streets as the borough is empowered to lay out, vacate, macadamize or pave, and does not apply to a turnpike owned by and under the control of the state of Pennsylvania. Answer : Refused. .The -.uncontradicted evidence in the case is, and on the side of the defendant, that the portion of the National Pike running through what is now the borough of West Washington was turned over years ago to the said borougli of West Washington, which borough took charge of and kept up and used as one of its streets and finally changed the grade in question in front of the plaintiffs’ property. [3]
    3. Under all the evidence in this case the verdict should be for the defendant. Answer: Refused. [4]
    Verdict and judgment for plaintiff.for ¡$750. Defendant appealed.

      Errors assigned were (2-4) above instructions, quoting them.

      It. W. Irwin, of Irwin Morgan, with him Jas. P. Eagleson, for appellant.
    — That a turnpike is not a street within the meaning of the acts of assembly relating to boroughs we believe has been the uniform decision of the Supreme Court wherever the question has been raised: Somerset and Stoystown Road, 74 Pa. 61; Parkesburg Borough Streets, 124 Pa. 511.
    The meaning of the words “ roads, streets and alleys ” in the act of April 3, 1851, is confined to such as begin and end in the borough, and not to such roads as are or may be opened through the borough, of which a part only is within the borough limits : Palo Alto Road, 160 Pa. 104; Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137; Wagner v. Salzburg Twp., 132 Pa. 636.
    The act of 1878 applied only to those streets which were laid out and ordained by the borough, or over which the borough had acquired complete control, and had authority to vacate: Wilson v. Allegheny City, 79 Pa. 272.

      T. F. Birch,, for appellees.
    — In common parlance, the word “ street ” is equivalent to highway: Case on Road from Fitzwater St., 4 S. & R. 106 ; Sharett’s Road, 8 Pa. 89; Stormfeltz v. Manor Turnpike Co., 13 Pa. 555.
    It was the act done by the borough which caused the injury. The control of the Cumberland road within the borough limits had been turned over to the borough of West Washington in some manner which is immaterial, and no opposition to the change of grade in pursuance of the ordinance of said borough has ever been raised, nor does it exist: Mellor v. Phila., 160 Pa. 614; Cooper v. Scranton City, 21 Pa. Superior Ct. 17; Rothwell v. California Borough, 21 Pa. Superior Ct. 234; Norristown’s Appeal, 3 Walker, 146.

      For the carrying out of this provision of the constitution, the Act of May 24, 1878, P. L. 129, is the only one applicable to change of grade : South Brady Street, 29 Pa. C. C. Rep. 85; Seaman v. Boro. of Washington, 172 Pa. 467; Bowers v. Braddock Boro., 172 Pa. 596.
    October 5, 1906:
   Opinion by

Porter, J.,

The plaintiffs, on May 1, 1905, presented their petition to the court below, alleging that their property abutting on West Chestnut street, in the borough of West Washington, had been damaged by the grading of that street by said borough, and praying for the appointment of viewers under the provisions of the Act of May 24, 1878, P. L. 129. The court appointed viewers as prayed for, the viewers reported, the defendant borough appealed, and from the resulting jury trial we have this appeal by the borough.

It is an undisputed fact that the borough proceeded in a regular manner to grade West Chestnut street, and prior to undertaking such work and during the execution thereof, through its duly authorized representatives, took all the steps required by law in the case of grading a street which it had jurisdiction to thus improve. The only question is whether West Chestnut street was a street, within the meaning of the act of May 24, 1878, the material provisions of which are as follows ^ “In all cases where the proper authorities of any borough, within this Commonwealth, have or may hereafter change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, without the consent of such owner, or in case they fail to agree with the owner thereof for the proper compensation for the damage so done or likely to be done or sustained by reason thereof;” the statute then proceeds to authorize the court of common pleas of the proper county to appoint viewers, provides for the manner of proceeding by the viewers and for an appeal from their report. The contention of the defendant borough is, that what is now known as West Chestnut street, within the limits of the borough, was a part pf the road known as the “National or Cumberland Road,” and that being a part of said road, it does not come within the operation of the statute in question. The fact that the street is a part of the old “National Road” cannot, under the evidence in this case, be questioned. The evidence clearly indicated that that part of the National road within the borough limits had for a considerable period of time been known as West Chestnut street, in the borough of West Washington, and had been kept in repair by and was under the control of the borough authorities, and that fact is conceded by the learned counsel for the appellant.

The grading in question resulted in a substantial change from the grade at which the street had been for many years maintained. If. the borough had authority to change the grade and that change resulted in damage to the property of the plaintiffs, then it was such an injury as would entitle the plaintiffs to compensation, under article XVI, section 8, of the Constitution of 1874. The Act of April 3, 1851, P. L. 320, section 2, expressly delegates to boroughs the power “ To regulate the roads, streets, lanes, alleys, courts, .... and the heights, grades, widths, slopes and forms thereof; and they shall have all needful jurisdiction over the same.” The authority to grade all streets and roads within the corporate limits is among the implied powers of a municipal corporation: City of Williamsport v. Commonwealth, 84 Pa. 493.

The act of 1878 is a remedy given to enforce the right guaranteed by the constitution, and it should receive a liberal construction: Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331. The terms “ street or alley,” as used in that statute, include all highways which the borough has the authority to grade, alter and change, and it was held in Power v. Borough of Ridgway, 149 Pa. 317, that for damages resulting to property from change in the abutments of a bridge, which was part of a highway, this statute afforded an appropriate remedy. That a borough is authorized to change, within the borough limits, the grade of a road which extends beyond the line of the borough and which was not laid out by the authorities of the borough; and that, in such a case, an owner of property injured may have his damages ascertained under the provisions of the act of 1878, has been definitely decided: Norristown’s Appeal, 3 Walker, 146 ; White v. Borough of McKeesport, 101 Pa. 394. The jurisdiction of the court of quarter sessions to authorize the laying out of a township road leading from a township into or through a borough, or to vacate such a road, cannot be questioned: Somerset and Stoystown Road, 74 Pa. 61; South Chester Road, 80 Pa. 370; Palo Alto Road, 160 Pa. 104. But the power to fix the grade of such a road within the borough lines, and to change it from time to time, is by law vested in the borough authorities : Rothwell v. California Borough, 21 Pa. Superior Ct. 234. If there is any special or local statute which exempts the National or Cumberland road from the general power of municipalities to change the grade of all public roads within their limits, such local statute was not offered in evidence in the court below, nor has it been called to the attention of this court. Upon the case as presented, the borough was authorized .to change the grade of the street in question, and the plaintiffs were entitled to have their damages assessed under the provisions of the act of 1878. The assignments of error are dismissed.

The judgment is affirmed.