author: Porter, J.,

text:
    Derry Township Road.

      Road law — Termini—Turnpike road — Necessity for road.

    A turnpike road is a public highway constructed by virtue of public authority and for public purposes.
    A point in a turnpike road maintained by a duly incorporated company, may lawfully be made the terminus of a public road.
    The mere fact that the net revenues of a turnpike company may be reduced by the opening of a new public road, because of the expense involved by the necessity of maintaining a new toll gate, does not present a conclusive bar to the right of the public to open such new highways, as the changes in public travel may render necessary.
    In order to justify a reversal of an order of the court below opening a new road, an abuse of discretion must be clearly shown.
    Argued March 15, 1906.
    Appeal, No. 20, March T., 1906, by Lewistown & Kishacoquillas Turnpike Company, from order of Q. S. Mifflin Co., opening a new road In re Derry Township.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Savidge, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court. ■

      W. H. Sponsler, with him T. M. Uttley & Son, for appellant.
    — A turnpike is not a lawful terminus for a public road: In re Penn’s Valley Road, 4 Yeates, 514; In re Matthew Miller’s Road, 9 S. & R. 35; Frankford Twp. Road, 24 Pa. C. C. Rep. 649; In re Hellam Twp. Road, 9 York, 151; In re London Britain Road, 1 Chester Co. Rep. 396; West Pikeland Road, 63 Pa. 471; Lower Merion Twp., 22 Pa. C. C. Rep. 645; Jefferson Twp. Road, 2 W. N. C. 138; Detroit v. Detroit, etc., R. R. Co., 43 Mich. 140 (5 N. W. Repr. 275).
    There was want of authority in the quarter sessions to decree this road: Packer v. Sunbury & Erie R. R. Co., 19 Pa. 211; Penna. R. R. Co.’s Appeal, 93 Pa. 150; Lewis v. Germantown, etc., R. R. Co., 16 Phila. 621; Pittsburg Junction R. R. Co.’s Appeal, 122 Pa. 511, and in Perry County R. R. Extension Co. v. N. & S. V. R. R. Co., 150 Pa. 193; Newburgh, etc., Turnpike Road Co. v. Miller, 5 Johns. Ch. 101; Nashville Bridge Co. v. Shelby, 18 Tenn. 279; Franklin, etc., Turnpike Co. v. County Court of Maury, 27 Tenn. 342; Auburn, etc., Plank Road Co. v. Douglass, 12 Barb. 553; White’s Creek Turnpike Co. v. Davidson County, 3 Tenn. Ch. 396; Great Bend Road, 2 Pa. C. C. Rep. 335.

      Rufus C. Elder, with him A. Reed Hayes, for appellee.
    — A turnpike is a public highway: Turnpike Co. v. Brown, 2 P. & W. 462; Lancaster Turnpike Co. v. Rogers, 2 Pa. 114; Northern Cent. Ry. Co. v. Com., 90 Pa. 300; Pittsburg, etc., R. R. Co. v. Com., 104 Pa. 583; Geiger v. Turnpike Road Co., 167 Pa. 582; Turnpike Co. v. Davidson County, 91 Tenn. 291 (18 S. W. Repr. 626).
    April 23, 1906:
    The court had authority to decree this road: Newburgh, etc., Turnpike Road Co. v. Miller, 5 Johns. Ch. 101; Hydes Ferry Turnpike Co. v. Davidson County, 91 Tenn. 291 (18 S. W. Repr. 626); Clarksville, etc., Turnpike Co. v. Clarksville, 36 S. W. Repr. 979; Auburn, etc., Plank Road Co. v. Douglass, 9 N. Y. 444; Greene Twp. Road, 21 Pa. Superior Ct. 418.
   Opinion by

Porter, J.,

The appellants excepted to the report of viewers in the court below upon two grounds, to-wit: (1) One terminus of the proposed road was at a point in the roadbed of the turnpike owned by the appellant company, and between two toll gates of the company as -now located ; (2) the proposed public road is in violation of the franchise and injurious to the property of the appellant turnpike company, in that it contemplates the use of a portion of said turnpike road, by the public, without the payment of tolls. The court below overruled the exceptions, confirmed the report of reviewers, and decreed that the road be opened. The turnpike company appeals from that decree.

The learned counsel representing the appellant has argued with great earnestness that a point in a turnpike road, maintained by a duly incorporated company, cannot lawfully be made the terminus of a public road ; that each terminus of a public road must be either another public road or a place of necessary public resort, and that a turnpike is not,, for this purpose, a public highway. That a turnpike is a public highway, constructed by virtue of public authority and for public purposes, must be accepted as definitely settled in Pennsylvania. The road is for the use of every person desiring to pass over it on payment of the toll established by law ; and those who obstruct it are liable to indictment as for a public nuisance. The company which constructs the road has the franchise to collect the tolls authorized by law, but if the charter of the company is forfeited, or the corporation abandons the road, the road continues to be a public highway: Turnpike Company v. Brown, 2 P. & W. 462; Lancaster Turnpike Company v. Rogers, 2 Pa. 114; Northern Central Railway Co. v. Commonwealth, 90 Pa. 300. The corporation was the agent of the state for the pur-. pose of constructing the road, the road is a part of the system of public highways of the commonwealth, and the court below had jurisdiction to add to that system a new road connecting the turnpike with another public highway.

The court below was vested with discretion to determine the necessity of the proposed road for the convenience of the public, and in order to justify a reversal of the decision of that question an abuse of discretion must be clearly shown. When the points at which a turnpike company may maintain toll gates are fixed by law, a proposed road which merely led around the toll gate, having both its termini in the turnpike, might be so manifestly intended for the sole purpose of enabling the public to avoid the payment of toll, while still continuing to use the turnpike practically in its entirety, as to leave no ground for .the exercise of discretion. We find nothing of that kind in the present case; the appellant company is at liberty to locate its gates at any point upon the line of its road, and the proposed road leads from the turnpike to another public road at a considerable distance, and will shorten the way of public travel and avoid two railroad crossings. The appellant company enjoys no exclusive privilege to construct roads in Mifflin county, and has no right to prevent the public from opening other roads to meet the public needs. The mere fact that the net revenues of the appellant company may be reduced by the opening of the proposed road, because of the expense involved by the necessity of maintaining a new toll gate, does not present a conclusive bar to the right of the public to open such new highways as the changes in public travel may have rendered necessary. The appellant holds its franchise subject to that risk: Charles River Bridge v. Warren Bridge, 36 U. S. 420; Hydes Ferry Turnpike Company v. Davidson County, 91 Tennessee, 291 (18 S. W. Repr. 626).

The order of the court below is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Washington Street.
    April 23, 1906:

      Appeals — Interlocutory order — Act of May 24, 1878, P■ L. 129 — Road, law.

    An order of the court of common pleas in a proceeding under the Act of May 24,1878, P. L. 129, giving the right to either of the parties to apply to the court for the appointment'of road viewers if the parties themselves fail to agree upon the viewers, is an interlocutory order, from which no appeal lies.
    Argued April 16, 1906.
    Appeal, No. 116, April T., 1906, by Waynes burg Borough, from order of C. P. Greene Co., Feb. T., 1905, No. 8, on application for the appointment of viewers In re Washington Street.
    Before Rice, P. J., Porter, Morrison, Henderson and Head, JJ.
    Appeal quashed.
    Application for appointment of viewers.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      James J. Purman, with him Prank W. Downey, for appellant.

      William J. Kyle with him Charles H. King, for appellee.
   Per Curiam,

To the petition filed by Ella B. Gordon for the appointment of five viewers, in conformity with the Act of May 24, 1878, P. L. 129, to assess her damages caused by the change of grade or grades therein described, the borough filed an answer, and upon consideration of the petition and answer the court made the following order: “ And now, December 28, 1905, it is ordered and directed that if the petitioner and borough authorities cannot agree upon the names of viewers to act in this case, that either of them shall have the right to apply to the court within ten days from this date for the appointment of such viewers as the court may select in the premises.” Thereupon the borough took this appeal. When the proceedings thus instituted reach final judgment, an appeal will lie in which the legality and regularity of the proceeding from the beginning may be reviewed, but the statute does not contemplate a separate appeal from each interlocutory order, as this undoubtedly is. Therefore the motion to quash must be allowed.

Appeal quashed at the costs of the appellant and the record remitted with a procedendo.


text:
    Mathushek Piano Manufacturing Company, Appellant, v. Engberry.
    April 23, 1906:

      Appeals — Assignments of error — Violation of rules of court. .
    Assignments of error based upon the charge will be dismissed where the appellant did not except to the charge, or request that it be reduced to writing and filed, before verdict rendered.
    Assignments of error based on answers to points and the admission of testimony, will not be considered where the points and the testimony referred to are not set out in the assignments.
    The refusal to grant a new trial is not ground for reversal unless there be manifest and flagrant abuse of discretion.
    Argued April 17, 1906.
    Appeal, No. 55, April T., Í906, by plaintiff, from judgment of C. P. Washington Co., Nov. T., 1904, No. 36, on verdict for defendant in case of Mathushek Piano Mfg. Co. v. I. M. Engberry and James H. Meek.
    Before Rice, P. J., Orlady, Porter, Morrison, Henderson, and Head, J J.
    Affirmed.
    Replevin for a piano. Before Taylor, J.
    The form of the. assignments of error appear by the opinion of the Superior Court.

      R. H. Meloy, for appellant.

      R. W. Irwin, of Irwin & Morgan, with him J. M. Patterson, for appellee.
   Per Curiam,

All of the assignments of error based upon the charge must be dismissed, because the appellant did not except to the charge, nor request' that it be reduced to writing and filed, before verdict rendered: Curtis v. Winston, 186 Pa. 492. To the assignments based on the answers to the points and the admission of testimony there is the additional objection that the points and the testimony referred to are not set out in the assignments, as required by rules XV and XVI. As to the eighth assignment, it is sufficient to say, that the refusal to grant a new trial is not ground for reversal unless there be manifest and flagrant abuse of discretion, and that nothing of that kind appears here.

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


author: Pee Curiam,

text:
    National Lumber Company v. Mehaffey, Appellant.

      Appeals — Paper-books—Failure to print record — Quashing appeal — Mechanic’s lien.

    An appeal from a judgment on a verdict on a scire facias sur mechanic’s lien, will be quashed, where it appears that the appellant, although having ample time, printed only a portion of the mechanic’s lien, and failed to print the evidence, the charge and exceptions, and also filed no specifications of error, or offered to file them until after the case was called for argument.
    Argued April 18, 1906.
    Appeal, No. 48, April T., 1906, by defendant, from judgment of C. P. Westmoreland Co., Aug. T., 1903, No. 45, on verdict for plaintiff in case of National Lumber Co. v. Anna J. Mehaffey.
    Before Rice, P. J., Orlady, Porter, Morrison and Henderson, JJ.
    Appeal quashed.
    Scire facias sur mechanic’s lien.
    The opinion of the Superior Court states the case.
    No errors were assigned.

      J. F. Dunlap and Elmer R. Snyder, for appellant.

      J. S. Moorhead, for appellee.

      April 23, 1906:
   Pee Curiam,

This was a scire facias upon a mechanic’s lien. The cause having been put at issue came on for trial and resulted in a verdict for the plaintiff. It appears by the docket entries that a motion for new trial was made by the defendant which was overruled; that subsequently a petition for rehearing was presented, which, “ after due consideration,” was refused; and that judgment having been duly entered upon the verdict, this appeal was taken in July, 19'05. It is thus seen that the appellant had ample time to prepare a paper-book in accordance with our rules. No reasonable excuse is offered for the failure to do so. The defects in it are not merely formal. The mechanic’s claim, except as partially recited in the writ, the evidence and the charge of the court are not printed. The record, as printed, fails to show that any ruling of the court was excepted to. It is stated in the history of the case that, before the jury was sworn, a motion was made to strike off the lien and dismiss the proceedings, but no record of such motion is printed, nolis the petition, if one was presented as the basis of the motion, printed. Finally, passing other minor defects in the paper-book, no specifications of error were filed or printed, or offered to be filed or printed, until after the appeal was called for argument and the motion to quash the appeal was made. Even in the absence of such motion, we would be constrained to quash it. No comment upon the manifest disregard of our rules is called for; it is apparent that the motion made by the appellant’s counsel, after the motion to quash, to continue the cause, in order to give him time to present a paper-book in accordance with our rules, must be refused.

The appeal is quashed at the appellant’s cost and the record remitted to the court below.


author: Rice, P. J.,

text:
    Becker, Appellant, v. Lebanon & Myerstown Street Railway Company.

      Street railways — Wrongful construction of road — Injuries to land — Damages —Malice.

    Where a street railway company lays its tracks on a public highway without the consent of an abutting owner, and this is done wrongfully, but without malice, and there is a resultant permanent injury to the real estate, the extent of the damage caused thereby is to be measured by the resulting depreciation in the value of the property. In such a case no malice can be inferred from the mere wrongful laying of the tracks, where the act was committed before the relative rights of street railways and abutting owners had been adjudicated by the courts.
    The mere fact that the road was not located in the center of the highway, but along the side of the road where it worked a greater injury to the landowner, does not affect the rule as to damages, or permit the owner to sue as for successive trespasses.
    Argued Oct. 27, 1905.
    Appeal, No. 199, Oct. T., 1905, by plaintiff, from judgment of C. P. Lebanon Co., Sept. T., 1900, No. 144, on verdict for plaintiff in case of John Adam Becker v. Lebanon & Myerstown Street Railway Company.
    Before Rice, P. J., Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass for injuries to land caused by the construction of a street railway on a highway. Before Ehrgood, P. J.
    The court charged in part as follows:
    There are some facts in this case that are not disputed. The plaintiff, Mr. Becker, is the owner of a tract of land of eighteen acres some distance east of Avon, fronting on the south side of the Berks and Dauphin turnpike, a distance of about 650 feet. Upon this tract of land he has a dwelling house, barn and oflier outbuildings. An orchard is on the premises also. It is limestone land. [The defendant is a street railway company, duly incorporated and constructed and is now operating a street railway on the south side of said turnpike immediately in front of the plaintiff’s land. The defendant constructed this railway without any authority of law. They had no right because they had not obtained the consent of Mr. Becker to the construction of the road in front of his premises on the turnpike. They operated the street railway until some time in 1897, when the court here refused to restrain the defendant from operating its road and also refused the prayer of the plaintiff to have the street railway torn up. In other words, the court then decided, not because the street railway company had the right to place the street railway where it placed it, or constructed it, but because the public became interested in it and by reason of the convenience to the public the court there then refused to interfere with the defendant company’s road and refused to grant the prayer of the plaintiff in his bill in equity to restrain the defendant from operating its road and also refused to tear up the road. That case was appealed to the Supreme Court. The Supreme Court affirmed the court below and we must now take that to be the settled and final decision in the case. That is, in other words, the street railway company, the defendant in this case, now is there by authority of law. That is, it is permitted to be there and hereafter to operate its road, under the decision of this court, affirmed by the Supreme Court. In other words, it is a permanent occupation now of the plaintiff’s land in the turnpike and the defendant from that time on was permitted, and is now permitted, and will hereafter be permitted to- operate its street railway in the usual and ordinary manner. So that up to the time when the court decided the equity case, which was finally decided by the Supreme Court, up to that time the defendant was on the plaintiff’s land without any authority whatever. The contention between the plaintiff and the defendant in this case differs very materially, and it is because there was such a material difference as to the positions taken by the plaintiff and the defendant that this case probably took as long to try as it did and probably there is no exact parallel of the case, decided in this state, — at least none has been called to my attention. But as we view the law we are of the opinion, and therefore we so instruct you, that the plaintiff in this case is bound to recover all his damages in one action, that is, in the present action, if he has any damages, for the reason that all his damages that have accrued and that can accrue, can now be ascertained, by reason of the permanency of the construction and operation of this railway.] [1] That the street railway now is there and permitted to be there under a decision of the court, however, does not absolve the defendant company from compensating the plaintiff in damages for such injuries as he has suffered by reason of the depreciation of the value of his property by constructing the road and operating it hereafterj and the important question for you to determine in this case is, what damages has the plaintiff suffered in this case?
    Defendant presented these points :
    1. There is no evidence that would justify the jury in finding that the street railway company, defendant, acted maliciously in the construction of its street railway along plaintiff’s land. Answer: That is affirmed. [24]
    2. There is no evidence to justify the jury in finding that the street railway company constructed its railway in any other than a careful and skillful manner, and in such a way as to do as little damage to the plaintiff as possible. Answer: That is also affirmed. [25]
    Verdict and judgment for plaintiff for $850. Plaintiff appealed.

      Errors assigned among others were (1, 24, 25) above instructions, quoting them.

      Bassler Boyer, for appellant.
    — The court instructed the jury that the proper and only rule by it to be applied in this case, in assessing the damages, if any, of the plaintiff, was the same as in cases of the lawful exercise of the right of eminent domain. This is error: Elder v. Lykens Valley Coal Co., 157 Pa. 490; Uline v. R. R. Co., 101 N. Y. 98 (4 N. E. Repr. 536); Rudolph v. R. R. Co., 186 Pa. 541; Robinson v. Black Diamond Coal Co., 57 Cal. 412; Coal & Iron Co. v. Tucker, 48 Ohio, 41 (26 N. E. Repr. 630); Berks & Dauphin Turnpike Road v. Ry. Co., 3 Pa. Dist. Rep. 55; Heilman v. Ry. Co., 180 Pa. 627; Pappenheim v. Ry. Co., 128 N. Y. 436 (28 N. E. Repr. 518); Penna. R. R. Co.’s App., 93 Pa. 150; Groff’s App., 128 Pa. 621,

      C. K. Killinger with him S. P. Light, for appellee.
    — In an action to recover damages resulting from the location, construction and maintenance of a street railway on a turnpike in a township, without consent of the abutting owner, the measure of damages, in the absence of malice, is the depreciation in the value of the abutting owner’s property, resulting from the change of grade and the construction and maintenance of the railway: Thompson v. Traction Co., 181 Pa. 131; Harrisburg v. Crangle, 3 W. & S. 460; Levering v. R. R. Co., 8 W. & S. 459; Pittsburg, etc., R. R. Co. v. Jones, 59 Pa. 433; Pittsburg’ etc., R. R. Co. v. Bruce, 102 Pa. 23; Richards v. Buffalo, etc., R. R. Co., 137 Pa. 254; Paterson, etc., R. R. Co. v. Kamlah, 42 N. Y. Eq. 93 (6 Atl. Repr. 444).
    April 23, 1906:
   Opinion by

Rice, P. J.,

There has heen much litigation between these parties growing out of the construction and operation of the defendant’s railway upon the turnpike in front of plaintiff’s premises. It began with a bill in equity praying for an injunction, filed by plaintiff in June, 1898, after the location and construction of the railway was begun, but before any work was done in front of his premises. The bill was dismissed for want of due prosecution, but in 1897, upon appeal to this court, the decree was reversed and the bill reinstated: Becker v. Lebanon & Myerstown St. Ry. Co., 4 Pa. Superior Ct. 372. Notwithstanding the pendency of the bill and the.anterior protest and objection of the plaintiff, the company went ahead with the work, completed the construction of the railway'in front of his premises in July, 1893, and has since operated it as then established. The track was laid about seven feet from the southern boundary of the turnpike, and occupies what was known and used as a “ summer road,” being a part of the highway that is not macadamized.

After reinstatement of the bill the case came on to be tried under the new equity rules, before Judge McPherson, of the twelfth judicial district specially presiding, and amongst his findings of fact were the following :

“ In building the railway the defendant used proper care and skill to conform at this point to the grade of the turnpike so far as it was reasonably practicable, and along plaintiff’s land there has been no serious, and scarcely an injurious, change in the grade. At the entrance to the house a planked crossing has been made, and is maintained by the defendant in order to facilitate passage over the track. The rails are of the T pattern, but the space between them and immediately outside has been filled up almost to the level of the rail, so that driving directly across them at the entrance to a field is accompanied with but slight inconvenience. Access to the house and fields has been interfered wjth very slightly, if at all. There is some risk in coming out of the house or lane, either on foot or by vehicle, because a car may be approaching, and it is necessary, therefore, for the pedestrian or the driver to take precaution by looking up and down the road in order to see whether a car is near at hand. At a point immediately outside of the gate there is no difficulty in seeing for about 1,000 feet in either direction. The existence of the track so near the fence causes occasional inconvenience by making it difficult and unsafe to tie horses in front of the house or elsewhere along the land, or to drive along the fence. Horses must be driven into the yard or the lane, or taken across the turnpike and tied upon the other side. It may be also that the construction of the railway has somewhat injured the plaintiff’s land by obstructing the natural surface drainage, so that pools of water now form more easily after a heavy rain and run off with greater slowness. Concerning this, however, we make no specific finding, but assume for the present purpose that to some extent the injury exists.
The community through which the railway passes is thickly settled and the travel is considerable ; cars run twice in every hour between Avon and Myerstown, and the convenience of the public is largely promoted by the existence of this means of travel. The service has been continuously maintained since the road was built, and a large section of the community has grown accustomed to its convenience and comfort. It has become an important means of transportation for the public along its line and for the towns which it connects. The interruption of its traffic would inflict great inconvenience upon the public and a serious loss upon the company. The amount of damage done to the plaintiff by the construction and operation of the railway need not be determined with any attempt at precision. It is enough to say that the evidence laid before the court shows plainly that whatever injury has been done is not considerable in amount, and may readily be compensated in damages.”

In his conclusions of law, after referring to the uncertainty that existed prior to the decision in Penna. R. R. Co. v. Montgomery County Passenger Ry. Co., 167 Pa. 62, and other cases in the same volume, as to the respective rights of a railway company, the abutting landowner and the local authorities in townships, he said: “ But during the uncertainty and confusion incident to the entry of a new subject into the domain of legal principle and- procedure, the railway was laid down, and this fact, with the other facts in proof, has so changed the situation that the plaintiff’s demand for a mandatory injunction can only be fairly considered in the light of the circumstances now existing.” Then, after reviewing the two Pleilman cases reported in 175 Pa. at pages 188 and 200, and quoting from the opinion of Mr. Justice Williams in 180 Pa. at p. 627, where the petition for reargument was refused, Judge McPhebsoh concludes as follows : “ So far as a court of first instance is concerned, the rule thus laid down must be followed in like cases. It is therefore decisive of the present controversy, and requires us to refuse the plaintiff’s prayer for a mandatory injunction commanding the defendant to take up its rails in front of his land. But the bill need not be dismissed. If the plaintiff desires to amend so as to ask for damages, the amendment will be permitted even at this stage of the proceeding, and the dispute upon this point can then be determined either by the court or by an issue before a jury. The plaintiff may, of course, decline to amend; in that event the bill must be dismissed. If dismissed, however, it will be at the defendant’s costs, for the decree of dismissal will be based, not on the plaintiff’s want of legal right, nor of the defendant’s observance of legal right, but on regard for the public interest and convenience, and on this alone.” The plaintiff having declined to amend, the bill was dismissed, and upon appeal to the Supreme Court the decree was affirmed in an opinion by Mr. Justice Mitchell from which we quote : “ The learned judge below found that the defendant railway company had constructed its track on the turnpike in front of plaintiff’s land without legal authority, though not in intentional violation of law. This is now conceded by defendant itself, and is the basis of plaintiff’s bill. Appellant plants himself firmly on his legal right, oand if he were in a court of law his position would be incontestable. But he has come into a court of equity asking its aid by injunction, which is of grace and not of right. The court below refused relief in this form, upon the well-settled equitable principle that an injunction will not be awarded where the benefit to the complainant is entirely disproportionate to the injury to the respondent. This is the ground of the decision and raises the only question we have to consider.” Later in his opinion he says: “ In view of the learned judge’s findings in the present case, on the loss to the defendant, the inconvenience to the public, the smallness of the injury to the complainant and its easy compensability in money, he could scarcely have reached any other conclusion than that complainant, however clear his right, should be left to his remedy in damages: ” Becker v. Lebanon, etc., Ry. Co., 188 Pa. 484.

In the meantime the plaintiff had brought an action of ejectment against the company which came on for trial after the termination of the equity suit and resulted in a directed verdict and judgment thereon for the defendant which on appeal to this court was affirmed: 11 Pa. Superior Ct. 649. Upon petition for allowance of anappeal from our decision the Supreme Court, while not concurring in the reason given by the trial judge and this court, held that the judgment was right because the action of ejectment does not lie in such case. “ The defendant was not in possession of the land in such sense that ousting it would put plaintiff in possession, and even if it were, plaintiff is not entitled to possession. He has only the fee in the soil subject to the possession and use of the surface by the turnpike company for public travel. The injury to him is in the illegal or excessive user of an easement of passage and travel, and his remedy for that is an action of trespass for damages.” The court also called attention to the delay of the plaintiff in bringing the equity case to a hearing until “ after the railway was completed and in operation, and it having in the meantime become á great public convenience,” as an important element in the decision of that case: Becker v. Lebanon etc., Ry. Co., 195 Pa. 502.

The foregoing extracts from the findings and opinions in these two cases show the points of law and fact adjudicated in the equity case and the grounds of the decision. It is important to have them directly in view in the consideration of the present appeal and we shall refer to them later.

In 1900, shortly after the termination of the ejectment case, the plaintiff brought this action of trespass, and in his statement of claim alleged, inter alia, that the defendant “in July, 1893, without the consent of and against the protest of the plaintiff, and without possessing the right or franchise to construct a street railway from Lebanon to Myerstown, and to do the act from which the injury to the’ plaintiff results, .... willfully and maliciously entered upon, constructed and has operated continuously (daily) since 1893, and now operates a street railway, on, in ... . the surface of the land of the plaintiff, contained and included in the said turnpike road, thereby taking the said land of the plaintiff, occupied by and with its construction or plant .... interfering with, preventing and destroying safe and easy access,” to and from his land and buildings, and interfering “with the drainage from his said land. . . Wherefore the plaintiff says he has already sustained and claims damages therefor from the defendant, because of its willful and malicious acts aforesaid in the sum, etc.” Shortly afterward the plaintiff brought four successive actions for continuation of the injuries, to which the defendant pleaded in abatement the pendency of the first action. The court below sustained the pleas in abatement, and from its judgment in the first of these cases an appeal was taken to this court, which resulted in a reversal of the judgment: Becker v. Lebanon, etc., Ry. Co., 25 Pa. Superior Ct. 367. The first action was then brought to trial and resulted in a verdict against the defendant for $350, and from the judgment thereon this appeal was taken by the plaintiff.

The important and' controlling question in the case, as it comes before us, is as to the measure of damages. The defendant claims, and the court so held, that the damages were to be assessed once for all, as in the case of a permanent injury, and were to be measured by the difference in value of the plaintiff’s property immediately before the construction of the defendant’s railway and its value immediately thereafter as affected by tire change of grade and construction and operation of the railway. This position is well stated in the defendant’s eighth point which was affirmed : “ That in case the jury should find in favor of the plaintiff, they should not fix the amount of his damages by adding the separate amounts which they think he has suffered from each of different items of damage of inconvenience to which he has testified, but they should consider these items only so far as they affect the market value of the property as a whole, and it is their duty to fix the amount of his damages, if any there be, by finding the difference in the market value of the property by comparing its market value before the street railway was constructed with its market value after the construction and operation of the street railway.” The plaintiff, on the other hand, claims that the jury should have been confined to the damages sustained by the plaintiff between the date of the construction of the railway and the date of bringing this action, to be measured by “ the difference or depreciation in the rental or usable value of his land, by reason of the said injuring, construction and operation.”

When the judgment upon the plea in abatement was before us for review (25 Pa. Superior Ct. 367) we took pains to say that the truth of the plea was to be determined by an inspection of the records of the two actions and that facts which may have been alleged or proved in other reported cases between the same parties relating directly or indirectly to the same subject-matter could not be considered. But upon the effect of the allegation of malice we remarked: Looking alone at the pleadings we have to deal with a case wherein it is alleged that a street railway was constructed, maintained and operated by the defendant in a highway, which inflicts an injury upon an abutting owner differing not only in degree but in kind from the injury done to other members of the general public, and, in addition to the injury to his adjacent land and the buildings thereon, imposes-upon his land included within the limits of the highway an additional burden, and still further, was erected and is being maintained maliciously.” We further said: “To hold that a corporation or a natural person acting without right or color of right and actuated by á malicious motive may demand that the damages for such wrongful and injurious acts as are complained of here shall be assessed upon the same basis as if they were done in the lawful exercise of the right of eminent domain would be contrary to sound principle and would be justified by no precedent to which our attention has been called.” As no reason has been suggested, and none occurs to our minds, for qualifying the general propositions involved in these remarks, it is necessary to determine whether the court committed error in declining to submit the question of malice to the jury, and in that term we include not merely ill will toward the plaintiff, but reckless or wanton disregard of his rights. The fact that when the plaintiff refused to give his consent to the construction of the railway in 'front of his premises, unless the defendant would lay the track in the center of the turnpike, the president of the company, replied: “ Well, we will build it anyhow,” or “we are an incorporated company and will build the road anyhow,” taken in connection with the subsequent construction and operation of the railway notwithstanding the pendency of the equity suit, is relied on as proof of malicious intention to ignore the. legal rights of the plaintiff. But the fair interpretation of this remark, in view of all the circumstances and the time when it was made, is not that the company would go ahead without regard to the lights of the plaintiff, but only that they would do so whether he consented or not; it was the contention of its counsel at that time that this was its charter right. It is to be borne in mind that this occurred in 1898; therefore it is to be viewed in the light of the remarks of Judge McPherson heretofore alluded to, that at that time there was much uncertainty on the subject, and of necessity many steps were taken in the dark. As shown by later decisions of the Supreme Court, the position taken by the defendant company and "its counsel, that after condemnation proceedings and payment of the sum awarded to the turnpike company it had the right to construct and operate its railway without the consent of the abutting landowners, was erroneous. But, as shown by some of the common pleas decisions cited in the appellee’s brief, it was not an absurd position; and while this mistake of law cannot excuse the defendant from liability to render full compensation to the plaintiff, we think it does rebut any possible inference of malicious intention to injure the plaintiff or ignore his rights. Moreover, the question as to the circumstances under which the defendant laid its railway was the subject of adjudication in the equity case, and it was there distinctly found, that it constructed its track on the turnpike in front of plaintiff’s laud without legal authority, though not in intentional violation of law. In view of this finding, approved by the Supreme Court, we think the trial judge was right in holding that the evidence would not support a finding, that the company-proceeded with “ malicious intention .... to ignore the acknowledged legal rights of the plaintiff,” as suggested in the plaintiff’s third point, or that its action “ was a wanton invasion of the plaintiff’s legal rights,” as suggested in his tenth point, and in affirming the defendant’s second point, that there was no evidence that would justify the jury in finding that the defendant acted maliciously.

It does not appear in the findings of fact in the equity case, nor in the evidence in this case, that the injuries of which the plaintiff complains are attributable to defective or improper construction or operation of the railway. In saying this, we have not overlooked what counsel have urged with regard to the filling as improper construction, but as to that there was a distinct finding in the equity case, that the defendant used proper care and skill to conform at this point to the grade of the turnpike so far as it was reasonably practicable and along plaintiff’s land there has been no serious, and scarcely an injurious, change in the grade. It may be conceded for the purpose of this discussion that the construction and operation of the railway in the location chosen along the summer road injures the plaintiff in a greater degree than would be the case, if it had been laid in the center of the macadamized part of the highway. But that would have been just as unlawful as to locate it where it is. The defendant is a wrongdoer and must respond in damages for its unlawful act. But if the injuries complained of are not attributable to defective or improper construction or operation, but are such as are incident to the careful and ordinary construction, and operation of a railway in the location chosen, while the amount of the damages the plaintiff was entitled to recover may have been greater, we cannot say that a different measure was applicable merely because the company did not choose another part of the highway for the location of its railway, which would. have been equally unlawful. In short, under the evidence in the equity case and the evidence in this case as to the construction of the railway, the fact that it was located at the side, instead of in the center, of the highway cannot affect the determination of the question whether the damages were to be assessed once for all as in the case of a permanent injury.

We have quoted, at great length from the equity case, because the decision there, considered in connection with the reasons assigned for it, seems to us to have an important bearing upon the question now under discussion. The general conclusion there reached was, that the plaintiff was not entitled to a mandatory injunction commanding the defendant to take up its rails, but should be left to his remedy in damages. This was not put upon the ground that the' plaintiff’s legal right, or the wrongfulness of the defendant’s user of the highway in front of his premises, was in doubt and therefore should first be established by action at law; both of these essentials to a claim for equitable relief were conceded on all hands to be present in that case. But it was held that the equitable principle, that an injunction will not be awarded where the benefit to the complainant is entirely disproportionate to the injury to the respondent, was applicable, and in arriving at this conclusion, the plaintiff’s delay in bringing the case to a hearing, the loss to the defendant and the inconvenience to the public that would result from an injunction mandatory and destructive in its character, the smallness of the injury to the complainant, and its easy compensability in money, were mentioned as the controlling considerations. We think it fairly inferable, therefore, especially in view of the prominence given to the public interest and convenience, that the court in refusing equitable relief did not have in contemplation a legal right in the plaintiff to abate the injury “by his own mere act and authority,” or to accomplish the same result indirectly, by first establishing his right in an action at law, and then bringing repeated actions for a continuation of the injury until the defendant shall be compelled to remove its tracks in order to escape constantly increasing awards of exemplary damages. (See 8 Bl. Com. 220; Wheatley v. Chrisman, 24 Pa. 298 at p. 303; Pollock on Torts, Bl. ed. *344). The idea very clearly conveyed is, not that there was available to the plaintiff a remedy at law to compel the removal of the railway, but that his injury was easily compensable in money damages, for the recovery of which there was an adequate remedy at law, and that, under the circumstances, this was his only remedy. This conclusion has the support of other cases, in which the extraordinary conditions growing out of the very common misapprehension that at first prevailed relative to the right to lay-railways upon township roads, had been the subject of consideration by the Supreme Court. Some of these cases are referred to or reviewed by Judge McPherson, and we need not extend this opinion by going over the same ground again; but it will not be out of place to call attention to the remarks of Mr. Justice Williams in Penna. R. R. Co. v. Montgomery County Passenger Ry. Co., 167 Pa. 62 at p. 72, as to the remedy of the abutter where he has lost, or in any mode debarred himself of, the right to compel the removal of the railway laid without his consent. What was there said may not have been absolutely necessary to the disposition of the case before the court, but it is proper to allude to it here, because, first, in the equity case between these parties the plaintiff’s delay in bringing the case to a hearing was held to be one of the obstacles in the way of his compelling the removal of the railway; second, because it was adopted, substantially, as one important ground of the decision in Thompson v. Citizens’ Traction Co., 181 Pa. 131. In the case last cited the trial judge, it is to be noticed, laid down the same rule for measuring the damages that was applied in the case at bar, and stated as the reason therefor, “ Neither the property owners nor the authorities of O’Hara township could compel this company to remove the road, and therefore it becomes a permanent fixture.” The Supreme Court, by Mr. Justice McCollum, said : “ They ” (the plaintiffs) “ cannot compel a change of grade or location, nor remove the embankment which interfered with access to their lot and was necessary to the support and operation of the railway. Their only remedy was an action to obtain compensation for the injury inflicted: Penna. R. R. Co. v. Montgomery County Pass Railway Co., 167 Pa. 62. No good reason appears for holding that the rulings and instructions in regard to the measure of damages were erroneous. The mere fact that the defendant was not invested with the power or right of eminent domain is not sufficient warrant for condemning them. It is true that they were in accord with the settled rule for the ascertainment of compensation in a case where a corporation invested with the privilege of taking private property for public use has in the construction or enlargement of its works, taken, injured, or destroyed the property of another. But this rule is not necessarily limited to such cases. It may be applied in a case of permanent injury to real estate when the issue is between private persons.” The parallel between the two cases, so far as the right of the abutter to compel removal of the railway is concerned, is perfect. It may be said that in that case the plaintiff invoked the application of the rule for measuring damages in case of permanent injury, and that it was for him to elect whether to proceed for such damages or to sue from time to time and recover the damages that had accrued up to the time of suit' brought. But in the recent case of Rabe v. Shoenberger Coal Co., 213 Pa. 252, where the defendant invoked the rule laid down in the present case, Mr. Justice Potter reviewed at length the authorities relative to the measure of damages for a permanent injury to real estate, and amongst other cases cited and quoted at length from Thompson v. Citizens’ Traction Co., in support of the conclusion: “ that where there is a permanent injury to real estate the extent of the damage caused thereby is to be measured by the resulting depreciation in the value of the property. Permanency of the injury is the proper test for the application of this rule.” Amongst the cases in which the Thompson case has been approved or followed we refer to Carpenter v. Lancaster, 212 Pa. 581; Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 148; Osborne v. Delaware County, etc., Electric Ry. Co., 9 Pa. Superior Ct. 632.

We conclude that the court was right in holding that the plaintiff’s injury was to be treated as permanent and in applying the rule as to the measure of damages laid down in Thompson v. Citizens’ Traction Co., 181 Pa. 131.

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


author: Morrison, J.,

text:
    Murphy v. Prudential Insurance Company, Appellant.

      Insurance — Life insurance — Forfeiture — Nonpayment of premiums — Waiver.

    Where a policy of life insurance has become forfeited by its own terms, by reason of nonpayment of premiums, the insured, cannot claim a waiver of the forfeiture by proof of an agreement with an agent of the company that premiums need not be paid during the pendency of a strike, where there is no evidence that the agent had authority to make such an agreement, or that the company ratified it, if made.
    Argued. Jan. 12, 1906.
    Appeal, No. 41, Jan. T., 1906, by-defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1908, No. 508, on verdict for plaintiff in case of James Murphy v. Prudential Insurance Company of America.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Reversed.
    Assumpsit on a policy of life insurance. Before Edwards, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [Now the policy being in this condition, the premiums not having been paid according to the terms of the policy, the real question in the case then is this, — did the company do something which now prevents them from defending against this suit on this point or on this ground ? That is the contention of the plaintiff in this case. It is in substance that Mrs. Murphy, acting for her husband, paid a visit to Mr. Schubert, the district superintendent of the Prudential Insurance Company of America in this district, in July, 1902; that she informed him that the strike was on or was pending, and that she would be unable' to pay the premiums, asking what should be done ; and then Mr. Schubert, according to her testimony, told her that during the pendency of the strike the company had decided to suspend the rules requiring the payment of the premiums, and that the premiums might be paid after the expiration of the strike, and that he had sent a man around to inform the policy holders of that fact, and that if the person insured should die in the meanwhile that the unpaid, premiums, the accrued premiums, should be deducted from the amount payable upon the death of the insured, and that those unpaid premiums should be a lien upon the policy. That is, in substance, the claim of the plaintiff in this case as to his right to recover on the policy which, according to its own terms, had lapsed. This is what is known in law as the doctrine of estoppel. The doctrine of estoppel is based upon good conscience, upon equity, upon common justice. If this company through its agent told Mrs. Murphy, who was acting for her husband, that she need not pay the premiums during the strike, and made the promise which she has testified that Mr. Schubert made to her, then the company would be estopped from coming into court and denying the right of the plaintiff to recover.] [1]
    [It is not considered good conscience, it is not considered good morals in law to permit a company through its agent to mislead a party with whom it has insurable relations and to lull them, according to the term used in the books, into fancied security, thinking that everything is all right, whereas if the agent had said no, it cannot be done, you must pay your premiums promptly, then the party insured could go and borrow the money and pay the premiums. I am giving you the side of the plaintiff now in this case, and I say to you that if the promise was made by Mr. Schubert in the manner testified to by Mrs. Murphy and by her son, Anthony Murphy, then the company is estopped from defending on the ground that the McNamara policy had lapsed.] [2]
    Verdict and judgment for plaintiff for #581.25. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them ; (4) refusal of binding instructions for defendant.

      A. A. Vosburg, with him Chas. W. Dawson, for appellant.
    — • The insured has no legal or moral right to ask that he get his insurance for nothing; hence the company is not estopped from forfeiting a policy for nonpayment of premiums, even though an agent had stated that there would be no such forfeiture: Ins. Co. v. Conover, 98 Pa. 384; Eisner v. Prudential Ins. Co., 34 N. Y. Supp. 246; Greene v. Ins. Co., 91 Pa. 387; McIntyre v. Ins. Co., 52 Mich. 188 (17 N. W. Repr. 781); Tate v. Ins. Co., 79 Mass. 79; Bartholomew v. Ins. Co., 25 Iowa, 507; Hoffman v. Ins. Co., 92 U. S. 164; Lantz v. Ins. Co., 139 Pa. 546; Thompson v. Ins. Co., 104 U. S. 252; Sydnor v. Ins. Co., 26 Pa. Superior Ct. 521; Hood v. Ins. Co., 26 Pa. Superior Ct. 527.
    April 23, 1906:

      Clarence Balentine, with him Charles Connell, for appellee.
    -There was a waiver of the forfeiture: Wachter v. Assurance ,Co., 132 Pa. 428; Light v. Ins. Co., 169 Pa. 310; Mentz v. Lancaster Fire Ins. Co., 79 Pa. 475; Walsh v. Ins. Co., 2 Lacka. Leg. News, 125; Dean v. Ins. Co., 62 N. Y. 642; Homer v. Ins. Co., 67 N. Y. 478; Tennant v. Ins. Co., 31 Fed, Repr. 322; Ins. Co. v. Norton, 96 U. S. 234; McGonigle v. Ins. Co., 168 Pa. 1.
   Opinion by

Morrison, J.,

This is an action of assumpsit on an insurance policy, issued by the defendant on the life of Patrick McNamara, and the plaintiff having recovered a judgment the defendant appealed.

After the death of McNamara the plaintiff, Murphy, brought this action, claiming to be the assignee of said policy for a valuable consideration. Upon this point we think there was sufficient evidence to warrant a finding that the plaintiff was entitled to recover, if the policy was in force at the date of the death of McNamara.

By the terms of the policy the assured was required to pay a weekly premium of seventy-one cents, and it is conceded that the last payment only continued the policy in force until June 30, 1902. The assured died January 2,1903, and, therefore, when the plaintiff made his claim for the insurance the policy had been forfeited, according to its terms, for more than six months. It is conceded that no premium was paid from June, 1902, until December following, when an attempt was made to pay premium on the policy, but it was never accepted by the company. The policy contains upon its face, in printing, the following: “ This policy shall be void .... if the said weekly premium shall not be paid according to the terms hereof. ... If for any cause this policy be or become void, all premiums paid thereon sha]l be forfeited to the company, except as provided on the back of this policy.”

“ 6. The weekly premiums stated in said schedule shall be paid to an authorized agent of the company on or before every Monday during the continuance of this contract, and no pay- ’ ment shall be considered binding upon the company unless entered by the agent at the time of the payment in the premium receipt book belonging with this policy.”

“ 8. If for any reason the premium is not collected by the agent when due, it shall be the duty of the policy holder, before the said premium shall be in arrears four weeks, to bring or send said premium to the home office, or to the company’s agent.”

“ 10. Agents are not authorized to make, alter or discharge contracts, or waive forfeitures, or receive premiums on policies in arrears beyond the time allowed by the regulations of the-company, which in no case shall exceed four weeks.”

This policy was by the plain terms upon its face, and the conceded fact that no premiums had been paid for about six months, lapsed, forfeited and void, unless the plaintiff could show a state of facts establishing a waiver of the default by the company, or that it was estopped from defending, because of the nonpayment of the premiums.

To avoid the apparent forfeiture of the policy by reason of the nonpayment of the premiums, the plaintiff set up, in substance, that his wife, acting for him, visited Mr. Schubert, called the district superintendent of the defendant company, prior to the date when the next premium would fall due after June, 1902; that she informed him that the strike waspending and that they would be unable to pay the premiums, asking what should be done ; that Mr. Schubert told her that during the pendency of the strike the company had decided to suspend the rules requiring the payment of the premiums, and that the premiums might be paid after the expiration of the strike; that if the person insured should die in the meantime, the unpaid premiums should be deducted from the amount payable at the death of the insured, and those unpaid premiums should be a lien upon the policy. This, in substance, is the ground on which the plaintiff claims to recover on a policy which, according to its own terms, had lapsed.

It is upon this alleged state of facts that the plaintiff contends for the doctrine of estoppel and waiver as against the defendant. It clearly appears that Mr. Schubert, Mr. Griswold and Mr. Haggerty were agents of the defendant company in the Scranton district, and that the defendant corporation had its home office in Newark, N. J. The scope of the power of these local agents is not presumed to extend beyond the soliciting of insurance and the collection of premiums and the business necessarily incident thereto. It must be conceded that the plaintiff furnished sufficient evidence to carry the question to the jury upon which he relied to save the forfeiture of the policy, provided proof of the statements of the agents was sufficient, without more, to bind the defendant company.

While the plaintiff sustained his contention by the testimony of his wife and son, the defendant positively proved by the testimony of Schubert and his two assistants that no agreement or promise was ever made by any of them to Mrs. Murphy or to anyone else, that the premiums need not be paid during the strike. Moreover, the agents went further, and specifically denied that they had any authority to enter into any such agreement. Now right here is where we think the learned court fell into error as alleged in the first and second assignments.

In the face of the plain terms of the policy above quoted, we think it was manifest error for the learned court to instruct the jury, in substance, that if Mr. Schubert made the promise relied on by the plaintiff, and testified to by Mrs. Murphy and her son, then the company is estopped from defending on the ground that the McNamara policy had lapsed. In our opinion, the burden rested on the plaintiff to go one step farther and satisfy the jury, by competent evidence, that the local agents at Scranton had authority to suspend the payment of premiums and still keep the policy in force. Upon this question we have carefully read the entire record without discovering a scintilla of evidence that these agents had any such precedent authority, and the record is just as barren of evidence that the company ratified such arrangement, if it was made.

In our opinion, under the facts and the law applicable thereto, the first, second and fourth assignments of error must be sustained. This conclusion will relieve us from discussing the remaining eleven assignments.

We are unable to understand, in view of tbe express terms of the policy, how the company can be held to have waived the payment of premiums or be estopped from defending on that ground in the absence of any evidence of authority in Schubert, or either of his assistants, to enter into the agreement upon which the plaintiff relies. If there was no authority in the agents to make such agreement, and the fact that it was made was never communicated to any officer or agent of the company having authority to make or ratify such an agreement, it becomes very clear that the alleged waiver and estoppel must fail.

Where an agent acts outside of the scope of his authority the company is not bound without ratification: Greene v. Lycoming Fire Insurance Co., 91 Pa. 387.

In Waynesboro Mutual Fire Insurance Company v. Conover, 98 Pa. 384, the policy provided that no suit should be maintained thereon unless brought within six months after a loss had occurred. The action was not brought for two years after the loss, and the plaintiff relied upon the promise of a general agent of the company that it was unnecessary to sue within the six months. Held, that such promise or statement by the agent did not constitute a waiver, and the judgment of- the court below in favor of the plaintiff was reversed.

In Lantz v. Insurance Co., 139 Pa. 546, it was in substance held: Where there was a provision in a policy that the acceptance of a premium after maturity should not constitute a waiver, the company having a general agent who frequently received, and had authority to receive, premiums after maturity, a promise upon the part of this agent, without new consideration, is not binding upon the company.

In Hoffman v. John Hancock Mutual Life Insurance Co., 92 U. S. 161, it is said in the syllabus : “ It is an elementary principle, applicable alike to all kinds of agency, that whatever an agent does can be done only in the way usual in the line of business in which he is acting. The taking of a horse, by an agent of a life insurance company, to pay the premium of a policy, was ultra vires and a fraud as respects the company. No valid contract as to the company could arise from such a transaction.”

If a duly authorized agent of an insurance company could not waive the payment of cash and accept property in payment of the premium, it is difficult to understand how an agent whose duty is -to solicit insurance and collect the premiums, can, in the absence of authority, waive the payment of the premiums and keep the policy in force in palpable violation of the plain terms printed on the face of the policy.

As to forfeiture for nonpayment of premium, see Thompson v. Knickerbocker Life Insurance Co., 104 U. S. 252.

Counsel for the plaintiff cites and relies on Knickerbocker Life Insurance Co. v. Norton, 96 U. S. 234, as to the principle that a declaration in a policy that the insurers’ agents had no power to make agreements or waive forfeitures, is only a notice to the assured, which the insurer could waive and disregard at pleasure. And whether the insurer exercised such option or not is a fact provable by parol evidence as well as by writing. The distinction between that case and the present one is that there was evidence in the former from which it could be found that the company had authorized the agent to make extensions and waive forfeitures. But in the present case there is not a, particle of evidence of any such authority to be submitted to the jury. And on the contrary, we have the positive undisputed evidence of the three representatives of the defendant at Scranton, that they had no authority to waive the payment of premiums, and yet the learned court permitted the jury to find that they did have such authority, or else that the company had ratified their action or was estopped from defending on the ground that the premiums were not paid and the policy forfeited. And so far as we can see this was done without sufficient evidence.

In Lantz v. Insurance Co., 139 Pa. 546, Mr. Justice Paxson (p. 566), quotes with approval from Marvin v. Insurance Co., 85 N. Y. 282, as follows: “ As we understand the law, as laid down by the court of last resort in such cases, in order to a valid extension of the time for the payment of a premium- on a life policy after the time of paymént has gone by, there must be some valid consideration for the extension or waiver of the condition of payment, or there must be something said by or on behalf of the insurance comjpany while the party bound to make the payment has still time and opportunity for so doing, by which the insured is induced to believe the condition is waived, or that strict compliance will not be insisted upon. This introduces an element of estoppel in the case.” This language is quoted and relied on by the plaintiff’s counsel but we do not think it applicable to his case. It was said in respect to a case where the insurance company, by one duly authorized, had promised that strict compliance in the payment of premium would not be insisted upon. But in the present case we have already endeavored to show that no one authorized to speak for the company, in that respect, promised that nonpayment of the premiums would not work a forfeiture.

In Kompa v. Franklin Fire Insurance Co., 28 Pa. Superior Ct. 425, will be found a careful discussion and citation of authorities in regard to the waiver of a forfeiture. See also Beddall v. Citizens Insurance Co., 28 Pa. Superior Ct. 600.

In the present case, Murphy, the plaintiff, had a policy on his own life which was forfeited for the nonpayment of premiums during the time of the failure to pay the premiums on the McNamara policy. That policy was reinstated by the company, on his application, and the unpaid premiums were made a lien upon the policy, and this fact is pressed as a reason why the company should be held liable on the McNamara policy. But we see no force in this argument. It is very clear, both on principle and authority, that the company had the right to reinstate the Murphy policy, he being in good health, and at the same time refuse to reinstate the McNamara policy. Moreover, it appears, without dispute, that McNamara refused to sign an application for reinstatement and to comply with the rules of the company in that respect.

In Sydnor v. Metropolitan Life Insurance Co., 26 Pa. Superior Ct. 521, we held (p. 526) : “ The acceptance of the second premium after it had become due, when the insured was in good health, did not constitute a waiver of the conditions of the policy as to the payment of future premiums, regardless of the health of the assured at the time such future premiums were permitted to become in default.”

The judgment is reversed and judgment is now entered against the plaintiff.


author: Head, J.,

text:
    Moore, Receiver, Appellant, v. Rohrbacker.

      Insurance — Fire insurance — Mutual fire insurance — Assessments—Boohs—■ Evidence.

    In an action by the receiver of a mutual fire insurance company to recover assessments on a policy, the assessment book of the company is admissible in evidence where it is shown to be a book of original entries containing the record of the policy in suit along with all others issued. In such a case the book is admissible not only as a book of original entries, but also as a record of a company of which the defendant was a member.
    In an action by the receiver of an insolvent mutual fire insurance company against a member to recover assessments, the plaintiff may show evidence of previous assessments laid by the company on the policy of the defendant and paid by him without objection. In such a case the evidence is competent as showing the course of dealing between the parties to the contract indicative of its true intent and meaning as construed by themselves.
    Argued Jan. 12, 1906.
    Appeal No. 53, Jan. T., 1906, by plaintiff, from order of C. P. Wayne Co., Dec. T., 1902, No. 7, refusing to take off nonsuit in ease of Elmer W. Moore, Receiver of tbe Iron City Mutual Fire Insurance Company of Pittsburg, v. Lewis Rohrbacker.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Reversed.
    Assumpsit to recover assessments on a policy of mutual fire insurance. Before Purdy, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were refusal to take off nonsuit, and various rulings on evidence referred to the opinion of the Superior Court.

      H. W. Mumford, for appellant.
    — Books of a corporation are admissible in evidence to prove amount of installments as well as the calls: Bavington v. Railroad Co., 34 Pa. 358; Comfort v. Leland, 3 Wharton, 81; Bedford Railroad Co. v. Bowser, 48 Pa. 29; Diehl v. Adams County Mut. Ins. Co., 58 Pa. 443.
    The defendant, as a member of the company, was charged with knowledge of its books and its affairs, with its management, rules and regulations: Mitchell v. Lycoming Mutual Insurance Co., 51 Pa. 402; Hackney v. Allegheny County Mutual Ins. Co., 4 Pa. 185; Dettra v. Kestner, 147 Pa. 566.
    April 23, 1906;

      M. E. Simons, with him F. P. Kimble and A. T. Searle, for appellee, filed no printed brief.
   Opinion by

Head, J.,

On November 29,1892, the Iron City Mutual Fire Insurance Company of Pittsburg executed and delivered to the appellee a policy of insurance whereby, in consideration óf “ the stipulations herein named and of an acknowledged liability to assessment,” it agreed to indemnify him against loss by fire on property therein described “ to an amount not exceeding fifteen hundred dollars ” from November 29, 1892, to November-29, 1897. By the acceptance of this policy, which he retained until May 16, 1896, the appellee assumed not only the relation of an “insured” towards the company as “insurer,” but became an actual member of the corporation, with a right to vote for the election of officers who were to carry on the corporate - affairs and thus to participate in the direction and control of its policy and business.

The policy of insurance provided that “ this policy shall be canceled at any time at the request of the insured ” and on May 16, 1896, the defendant returned the policy stating he had canceled it.

To No. 722, September Term, 1895 of the court of common pleas of Lackawanna county a large judgment was entered against the insurance company and upon it an execution was issued but the sheriff was unable to make the money and, 'proceedings having been instituted in the Dauphin county court, the corporation, on October 19, 1897, was adjudged insolvent and the present plaintiff was appointed a receiver. On October, 27,1899, a final order was made by the said Dauphin county court directing the receiver to levy an assessment “ upon a.11 persons who have held assessable policies ” in the said company, “ the amount of said assessment to be determined in the following manner: the face amount of each policy shall be multiplied by a number which is as many times one as the basis rate at which such policy was issued and in force, is times one per cent.” The defendant having refused to pay the assessment levied in pursuance of this order the present action was begun to enforce payment. Presumably, of course, the defendant would be called on to contribute only to such losses as occurred while his policy was in force, whatever may have been the length of that period under the facts of the case.

Clearly enough in order to arrive at the amount due from any member, it would be necessary to ascertain “ the basis rate at which such policy was issued and in force.” For this purpose the plaintiff, on the trial, made a number of offers of evidence, the rejection of which by the court, constitutes the several assignments of error.

The plaintiff having first properly identified the “ assessment book ” of the company and proven it to be a book containing the record of the policy in suit along with all others issued, offered the book in evidence “ for the purpose of showing the record of the company of the issuing of this policy, the time of its return, the assessments paid on it, if any, and the basis rate at which it was issued.” The offer was objected to because the book did not furnish the best evidence of the alleged facts sought to be proven. Where the “ best evidence ” referred to could be found we are not informed by the objection. The ruling of the court rejecting the offer and excluding the book seems to have been based on the limited liability clause attached to that policy. The time for considering to what extent, if at all, that clause would prevent a recovery had not yet arrived, and the existence of the clause afforded no reason for declaring the offer to be irrelevant or inadmissible. Neither did it appear that the evidence was in anywise secondary. The book was declared by the witness to be the book of original entries in which the records of all assessable policies were kept.

The whole method of laying assessments was expressly left, by the by-laws, to the directors, and this book was the evidence of the usual and normal way in which the business was transacted, and unless something to the contrary appeared, the inference that the method shown by the books, as kept in the office and by the employees of the company, was the method sanctioned by the directors, was so plain as to make it impossible to properly reject the evidence of these records. Moreover, the records of the company were admissible in evidence because tbe appellee was a member of the company and he, as much as any other member, was responsible for the manner in which its records were kept. In Diehl v. Adams County Mutual Ins. Co., 58 Pa. 443, Thompson, C. J., says: “ The second assignment was equally well answered. The plaintiff below became a member of the company by the act of being insured in it. It was a mutual insurance company. The books were, therefore, in law, as much his as they were the books and minutes of the other members constituting the company: Conn. v. Woelper, 3 S. & R. 29; Hackney v. Ins. Co., 4 Pa. 185.” In Mitchell v. Lycoming Mutual Ins. Co., 51 Pa. 402, Agnew, J., says: “ These general principles are made doubly binding upon the assured in this instanee by his relation. He becomes a member of the corporation by the act of insurance, and therefore bound to become informed of its rules and regulations.” The second assignment is therefore sustained.

By the offer contained in the sixth assignment the plaintiff undertook to show the previous assessments laid by the company on the policy of the appellee and paid by him without objection ; in other words, the course of dealing between the parties to the contract indicative of its true intent and meaning as construed by themselves. Such evidence is always admissible in a contention concerning the proper construction of a contract. It is the function of courts in dealing with contracts to ascertain the things about which the parties intended to agree, the objects on which their minds met, the conclusions to which their wills assented and to construe their contracts so as to effectuate those objects and establish those conclusions.

It ought therefore to be reasonably clear that a series of acts done by the parties to a contract, evincing a common and mutual understanding of the rights of one and the obligations of the other, would be regarded by the law as valuable evidence in the settlement of a dispute that had arisen between them growing out of that contract.

In N. Y. Tartar Co. v. French et al., 154 Pa. 273, Mr. Justice Dean, speaking of such a course of dealing between parties, says:

4/ The course of dealing here shows that plaintiff was to insure whenever ordered by defendants, and was not to insure unless so ordered. This inference is not a custom of merchants reading into a contract a trade obligation, but tbe interpretation of this contract, which the parties themselves by their conduct put upon it.”

In Gas Co. v. Wire Co., 156 Pa. 22, the court say, commenting on a reference by the court below to the course of dealing between the parties, “We do not think this reference objectionable. It was used to illustrate the construction placed upon this contract by the parties themselves; when we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to tjieir own construction of it, as evidenced by their course of dealing under it.” The exclusion of this offer was therefore erroneous and the sixth assignment is sustained.

With the admission of the books and any proper and necessary explanation of their contents by the witness who kept or assisted in keeping them, and the course of dealing between the parties, we assume the offers covered by the remaining assignments will become irrelevant. They appear to have been alternative to and substitutes for those already disposed of and no further consideration of them would be profitable.

Judgment reversed and a venire facias de novo awarded.


text:
    Beach’s Estate.

      Appeals — Quashing appeal — Final and interlocutory decree — Act of April 14, 1835, P. L. 275.
    'Where the report of an auditor appointed by the orphans’ court has been excepted to by two of the parties in interest, and the exceptions of one party are overruled, and those of the other are sustained, and the report referred back to the auditor to make distribution, and the auditor takes no further steps, an appeal from the decree overruling the exceptions of one of the parties, is premature, and will be quashed.
    Argued March 7, 1906.
    Appeal, No. 14, March T., 1906, by S. P. Beach, from decree of O. C. Tioga Co., May T., 1903, No. 2, overruling exceptions to auditor’s report in Estate of L. O. Beach, deceased.
    Before Rice, P. J., Porter, Mor-, rison, Henderson, Orlady, Beaver and Head, JJ.
    April 23, 1906:
    Appeal quashed.
    Exceptions to auditor’s report.
    The opinion of the Superior Court states the case.

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

      S. F. Channell, with him F. E. Watrous and 3. F. Marsh, for appellant.

      R. K. Young and G. W. Merrick, for appellee.
   Opinion by

Head, J.,

The Act of April 14, 1835, P. L. 275, provides that “ all accounts presented to the orphans’ court by executors, etc., shall be examined by the court and, if not excepted to, shall, after due consideration, be confirmed,” etc. In Rhoads’s Appeal, 39 Pa. 186, it was held that such decree was a final decree from which an appeal could be taken. “I cannot doubt, ” said Thompson, J., “ but that a decree made as required by the act, after examination by the court, and after ‘ due consideration,’ must be taken to be a definitive decree from which an appeal would lie; and so in fact, we held in Irwin’s Appeal, 35 Pa. 294, on the motion to quash.” This case has been often cited with approval both by the Supreme Court and this court: Appeals of Fross and Loomis, 105 Pa. 258; Galloway’s Estate, 5 Pa. Superior Ct. 272.

But nowhere in this record can we find such a final and definitive decree confirming the executor’s account as is contemplated by the act of assembly and the decisions cited. When the account was brought in exceptions were filed to it, and, as we learn from the history of the case, “ E. B. Young, Esq., was appointed an auditor to restate the account and to report distribution.” He might have performed the two duties embraced in his appointment separately and thus laid the foundation for a separate and final decree aimed only at the confirmation of the account. He made, however, but a single report in which he entirely restated the account and made a distribution of the balance shown by the account, as restated, to be in the hands of the executor. Exceptions to this report were filed both by the appellant and the accountant. Those filed by the former are printed in the paper-book and were overruled by the court; those filed by accountant are not printed, but a number of them were sustained by the court. To what extent the account will be changed when finally restated by the auditor in accordance with the opinion of the court we cannot now tell. The order of the court from which this appeal is taken is as follows:

“ And now, January 8, 1906, the report of the auditor is referred back to him to make distribution in accordance with the foregoing.” It thus appears there has been no final decree directly confirming the account either as filed by the accountant or as restated by the auditor; nor has there been any decree finally confirming the report of the .auditor which, under the terms of the reference, would operate indirectly as a confirmation of the account as restated. We regard the whole record as still open in the orphans’ court without any definitive decree, so that the accountant, the appellant or other party interested will still have a day in court to except to the final decree when it shall have been entered. The present appeal is therefore premature and the motion to quash it must be sustained.

Appeal quashed.


text:
    Marshall’s Estate.

      Decedents’ estates — Widow’s exemption — Laches—Order of sale.

    A delay in. taking out letters of administration, not caused by the widow, will not prejudice her in her right of exemption.
    Where a widow does not make a formal demand for her exemption until three months after the date of letters of administration, no presumption arises from such delay on her part of an intention to waive her privilege. In such case the fact that the demand was not made until after an order to sell the real estate had been obtained, is immaterial.
    There is no hard and fast rule of law that declares that a widow’s claim of exemption is always too late if an order of sale has been already obtained. Where an administrator disregards a demand made by a widow for her exemption, when the fund is yet intact in his hand, and distributes the money without taking any refunding bonds, and without asking the court to make a decree of distribution or to appoint an auditor, he will be personally liable to the widow for the whole amount of her exemption, if such exemption is properly due to her.
    April 23, 1906:
    Argued March 8, 1906.
    Appeal No. 8, March T., 1906, by L. P. Thomas, Administrator, from decree of O. C. Lycoming Co., March T., 1904, No. 44, dismissing exceptions to report of auditor in Estate of Joseph Marshall, deceased.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Affirmed.
    Exceptions to report of W. C. Gilmore, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      James B. Krause, with him W. K. Bastin, for appellants.—
    The widow did not make her claim for an appraisement and the exemption in time: Davis’s App., 34 Pa. 256; Gibson’s Estate, 5 Pa. Superior Ct. 57; Good’s App., 152 Pa. 63; Bryan’s Est., 4 Phila. 228; Gilleland v. Rhodes, 34 Pa. 187; Maier’s Est., 1 Pearson, 420.

      Herbert T. Ames, with him T. H. Hammond, for appellee.—
    The widow’s demand for her exemption was made at the time of the appraisement, March 1, 1904, verbally twenty-two days after the administrator was appointed, and in writing May 11, 1904, three months and five days after his appointment, and was within a reasonable time: Burk v. Gleason, 46 Pa. 297; Kerns’s Appeal, 120 Pa. 523; Sellers’s Estate, 82 Pa. 153:
    A demand made by a widow for her exemption before the sale of the real estate where no costs have been made except such as would have been incurred, if the claim had not been presented, is in time: Rank’s Estate, 12 Phila. 67.
   Opinion by

Head, J.,

The record does not disclose any cause for the somewhat unusual delay in taking out letters of administration in this estate. As it is not alleged that the widow was in any way to be charged with such delay she ought not to be prejudiced thereby. Until there was an administrator there was no one to whom she could make claim for her statutory allowance, commonly called her exemption.

The letters were actually granted to L. P. Thomas on February 6, 1904. The appraisement of the personal estate was made March 1, 1904. It was scarcely sufficient to pay the costs of appraisement, the total amount of the inventory being $3.32. The administrator, the two appraisers and the widow were together on that day and the auditor finds that then and there the widow made a verbal demand for her “ widow's exemption.” The appraisers heard it and testify to it. The auditor further finds “ with some reluctance,” as he states, that this demand was not heard by the administrator and was therefore' not a complete or proper demand. On April 4, 1904, the administator, who did not seem to have regarded the widow as a person to be consulted or even informed concerning the various steps in the settlement of the affairs of her deceased husband, obtained an order for the sale of the real estate for the payment of debts, the sale being fixed for May 12, 1904. The land to be sold consisted of a single small piece which brought $400. The widow lived in the country some eighteen miles from„the county seat. On May 11, the day before the sale, she came to Williamsport and consulted counsel who drew up a formal demand for her exemption and a request for an appraisement and this was handed to the administrator the same evening. He decided her demand was too late, refused to have an appraisement made and sold the property the following day.

Had the widow, under the circumstances above recited, lost her statutory privilege by unreasonable delay in making her demand ? It has been frequently held that this privilege is a personal one and may be waived by the widow either by some unequivocal act manifesting her intention not to claim it, or by such unreasonable delay in making her demand as to warrant the presumption of such intention. But in no case has it ever been held that, where a formal demand was made within about three months from the date of the letters of administration, such a presumption of an intention to waive the privilege could arise. And in this case even the abortive attempt made by the widow to have her claim reach the ear of the administrator when the personal property was appraised, was evidence that she in fact entertained no such intention.

But, it is argued, even if the mere lapse of time is not sufficient to convict the widow of laches, her claim should nevertheless be denied because an order to sell the real estate had been applied for and obtained before she had made her formal demand for an appraisement. The time at which an order to sell real estate will be applied for is wholly within the discretion of the administrator. In a case, like the present one, where there is practically no personal estate at all, an application might be made by him within a very few days after the grant of his letters and before the vrálow had any reasonable opportunity to be apprised of her rights. If there be a hard and fast rule of law that declares a widow’s claim is always too late if an order of sale has been already obtained, then it would follow that the jurisdiction of the courts, to determine in each case what was a reasonable time within which her claim must be made, would be ousted, and the whole question would be disposed of by the administrator. In one case he might afiow her sufficient time to so inform herself as to enable her to intelligently consider the condition in which the affairs of her husband had been left and her own situation consequent thereon ; in another he might compel her to action without such opportunity under penalty of losing her right to a humane and beneficent provision of the law, thus making a second bereavement follow the one already suffered. Such is not, cannot be, the law, and the case of Davis’s Appeal, 34 Pa. 256, cited and relied on by appellant, is not a case really in point. There a widow selected and elected to retain personal and real property amounting to about $200, which was duly appraised and set apart for her. She refused to take any more, desiring it to go to creditors. The appraisement was filed and confirmed. More than a year later, and after an order to sell the remaining real estate had been obtained, she demanded a second appraisement for the balance of $300. It was held she was concluded by the first one. “ The demand was too late. She had already had one appraisement, and the act of assembly did not give her two; and besides, relying on the faith of her first election and its approval by the orphans’ court, the administrator had proceeded to incur expense in obtaining an order of sale and perhaps in advertising. ... It is sufficient, however, to say that she was not entitled to a second appraisement.”

It needs no argument to show that that ease is not decisive of the present one. That an order of sale had been applied for here before the demand was made is, in and of itself, of no consequence, especially as it is not pretended that this action was taken in reliance upon anything done or omitted by the widow. Some small costs were doubtless incident to the granting of the order, but they would have been probably incurred in any event in order to dispose of the property and close up the estate.

But little need be said on the remaining question in the case. Some months after the sale of the real estate the widow was called on the telephone by her counsel and asked if she would accept $110 in satisfaction of her claim, that much being offered by the administrator. On the understanding that this was the most she could get out of it, she expressed her willingness to take it. This being on a Saturday, on the following Monday she called up her representative and withdrew her acceptance, stating she wanted all or none. This notice from her was given to the administrator, as the auditor expressly finds, whilst all of the fund was yet either in his actual possession or under his control. ' Notwithstanding this he insisted on distributing the money in accordance with his arrangement, without taking any refunding bonds, without asking the court to make a decree of distribution, or to appoint an auditor. The widow in due time received her allotment less counsel fees and expenses and has retained it as a payment on account. The auditor who was finally appointed to make a proper distribution of the fund in the hands of the administrator, awarded the whole sum to the widow on account of her exemption, she of course to allow credit' for the amount previously paid to her. The facts found by the auditor and the authorities cited by him leave little room to doubt the correctness of the conclusions reached by him, and we are satisfied that in confirming the report no error was committed by the learned court below.

Decree confirmed and appeal dismissed at the costs of the appellant.


author: Pee Cueiam,

text:
    O’Connor, Appellant, v. Decker.
    ' Insurance — Fire insurance — Sole and unconditional ownership.

    Where a policy of fire insurance provides that the policy shall be void if the interest of the insured be other than unconditional and sole ownership, the policy is rendered void if the insured conveys the property insured to a third party by a deed absolute on its face, under a parol agreement that the same shall be held as collateral security for the payment of a debt.
    Argued March 8, 1906.
    Appeal, No. 11, March T., 1906, by plaintiff, from judgment of C. P. Lycoming Co., Dec. T., 1904, No. 382, on verdict for garnishee in case J. J. O’Con-nor v. George A. Decker, with notice to the Lebanon Mutual Fire Insurance Company of Lebanon, Garnishee.
    Before Rice, P. J., Porter, Morrison, Henderson, Orlady, Beaver and Head, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Ormerod, P. J., specially presiding.
    At the trial it appeared that on May 1, 1899, Geo. A. Decker borrowed from the firm of Linck Bros., the sum of $1,500, for which he gave them his judgment note dated May 1, 1899. The $1,500 was to be used towards the erection on said land of the building which was the subject of the insurance sought to be recovered in this ease.
    To further secure Linck Bros., Geo. A. Decker on July 5, 1899, excuted and delivered to them a fee simple deed for said property, the verbal agreement between the parties being that the deed should be in effect a mortgage only and be held by Linck Bros, as collateral security for the repayment to them of said $1,500, upon payment of which the property was to be reconveyed to Decker; the note given for same being still retained by Linck Bros. The title to said property remained in the same situation until the property was destroyed by fire on October 23, 1904. The policy in suit was issued on May 16,1904.
    The court gave binding instructions for the garnishee.
    Yerdict and judgment for garnishee. Plaintiff appealed.

      Error assigned was in giving binding instructions for garnishee.

      April 23, 1906:

      Seth T. McCormick, with him John M. Reilly, for
    appellant. —The holder of an equitable title has an insurable interest in the property: Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Lebanon Mut. Ins. Co. v. Erb, 112 Pa. 149; Kronk v. Ins. Co., 91 Pa. 300; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Millville Mut. Fire Ins. Co. v. Wilgus, 88 Pa. 107; Watertown Fire Ins. Co. v. Simons, 96 Pa. 520; Elliott v. Ashland Mut. Fire Ins. Co., 117 Pa. 548; Yost v. Dwelling House Insurance Co., 179 Pa. 381; Burson v. Fire Assn., 136 Pa. 267.
    This case- is absolutely ruled by the case of: Burkhart v. Insurance Company, 11 Pa. Superior Ct. 280.

      C. LaRue Munson, with him Addison Candor and John G. Candor, for appellee.
    — We submit that this case is ruled by Bemis v. Ins. Co., 200 Pa. 340.
   Pee Cueiam,

The-policy in question contained this condition: “This entire policy .... shall be void .... if the interest of the insured be other than unconditional and sole ownership ; or if the subject'of insurance be a building on ground not owned by the insured in fee simple.” The question for decision is, whether there can be a recovery upon the policy, notwithstanding the fact that the insured had conveyed the real estate to a third party by a deed absolute on its face, under a parol agreement that the same should be held as .collateral security for the payment of a debt and constitute a mortgage, and the title and ownership stood in that condition at the date of the delivery of the policy and of the fire. The defendant’s counsel contend that an insuperable obstacle to recovery is that by reason of the provisions of the Act of June 8, 1881, P. L. 84, the policy holder had no interest in the property which he could enforce at law or in equity. That he had no such interest, or, to say the least, that the evidence would have been insufficient and incompetent to show that the deed was in fact a mortgage in a suit between him and the grantee, is conclusively settled by the decisions construing the act of 1881: Sankey v. Hawley, 118 Pa. 30; Molly v. Ulrich, 133 Pa. 41; Grove v. Kase, 195 Pa. 325; Crotzer v. Bittenbender, 199 Pa. 504; Lohrer v. Russell, 207 Pa. 105; Safe Deposit & Title Guaranty Company v. Linton, 213 Pa. 105; Sterck v. Germantown Homestead Co., 27 Pa. Superior Ct. 336; Rockhill’s Estate, 29 Pa. Superior Ct. 28. True, it was decided in Burkhart v. Farmer’s Union Assn. & Fire Insurance Co., 11 Pa. Superior Ct. 280, that in an action on an insurance policy, which provided that the same should become void upon an assignment or transfer of the property, it was error to reject an offer on the part of the plaintiff to prove by parol that a deed of transfer delivered after the issuance of a policy was intended only as a mortgage, and that the debt secured had been paid and a reconveyance made before the fire occurred. The ground of this decision was that the act of 1881 is to be construed in the same way as the Statute of Frauds of 1772 and the fourth section of the act of 1856, and therefore is not to be applied for the benefit of third persons who are neither purchasers for value without notice nor creditors. The theory upon which this distinction was made between a case where the statute is invoked by the grantee in the deed or his privies and a case where it is invoked by a third person was again made the ground of decision in Bemis v. Harborcreek Mutual Fire Insurance Co., 14 Pa. Superior Ct. 528. There the policy contained'á'clause that it “shall be void if any change, other than by the death of the insured, take place in the interest, title or possession of the subject of insurance,” and the evidence showed that the deed in question was without consideration, that the purpose was to bar the wife’s dower and that it was delivered under an oral agreement of the grantee to reconvey at any time, pursuant to which agreement he reconveyed the property before the fire took place. Upon appeal to the Supreme Court the judgment was reversed, and while the act of 1881 was not directly involved in the case the distinction above referred to, upon which alone the Burkhart case was decided, was necessarily brought into consideration. Speaking of the transaction, Justice Potteb. said: “ He thus absolutely parted with the legal title to the property, and, in so doing, violated the very letter of the condition of the policy, stipulating that there should be no change in the title -without the consent of the insurer. It is idle for a party to execute a solemn deed of conveyance, purporting to be for a large consideration, duly acknowledge and record the conveyance, and then set up the claim that he has not parted with his ownership of the property, in any degree. Yet this is the contention of the appellee in this case. If the grantor intended any thing less than an absolute conveyance of his title and interest, no such intimation appears in the deed. The relation of insurer and insured was terminated when the condition was thus voluntarily broken by the act of the insured. It could not be restored without the express or implied consent of the insurer. No such consent was given:” Bemis v. The Harborcreek Mut. Fire Insurance Co., 200 Pa. 340. Accepting and following the doctrine of that case, we are precluded from holding here that the policy holder was the sole and unconditional owner within the meaning of the policy, when he had conveyed the property by deed absolute on its face, and the revesting of the title in him depended wholly upon the will of the grantee. It was said by Judge Porter in Chulek v. United States Fire Insurance Company, ante, p. 435, that the Burkhart case must be regarded as overruled by the.decision of the Supreme Court in the Bemis case, Further consideration has confirmed us in that conclusion.

Judgment affirmed.