text:
    Keile v. Kahn, Appellant.

      Negligence — Collision between wagon and cab — Contributory negligence— Question for jury.

    In an action to recover damages for injuries to a horse, it appeared that plaintiff’s employee was driving a covered wagon on a street where there ' were two street car tracks. The driver turned the wagon from the ear track to enter upon an intersecting street. While he was in the act of turning, with his wheels dragging on the rails, before they were entirely free from the track, the defendant’s cab approached at a rate of speed of about nine miles an hour, the driver permitting the reins to hang loosely, and in making the effort to cut the wagon out on the turn, or in trying to pass it he forced a collision at the curb, injuring the plaintiff’s horse. Held, that the case was for the jury and that a verdict and judgment for the plaintiff should be sustained.
    The question of contributory negligence cannot be treated as one of law, unless the facts and the inferences from them are free from doubt; if there is a doubt as to either the case is for the jury. It is the exclusive province of the jury to pass upon the credibility of witnesses, weigh the evidence, and ascertain the facts.
    Argued Dec. 12, 1905.
    Appeal, No. 83, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1902, No. 1,800, on verdict for plaintiff in case of George Keile v. Samuel M. Kahn.
    Before Rice, P. J., Beaver, Ordady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a horse. Before Atjdenried, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $125. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Eugene Raymond, for appellant,
    cited: Baker v. Fehr, 97 Pa. 70; Waters v. Wing, 59 Pa. 211; Penna. Canal Co. v. Bentley, 66 Pa. 30; Hays v. Gallagher, 72 Pa. 136; Goshorn v. Smith, 92 Pa. 435; Whitaker v. Delaware & Hudson Canal Co., 87 Pa. 34; Brunner v. Blaisdell, 170 Pa. 25; Mixter v. Coal Co., 152 Pa. 395; Baran v. Reading Iron Co., 202 Pa.z 274; Aument v. Penna. Telephone Co., 28 Pa. Superior Ct. 610.
    March 12, 1906:

      Edward D. Wadsworth, for appellee,
    cited: Cohen v. Philadelphia & Reading R. R. Co., 211 Pa. 227; Bartholomew v. Kemmerer, 211 Pa. 277.
   Opinion by

Oblady, J.,

The plaintiff’s right to recover in this case depends entirely upon the interpretation a jury would put upon certain disputed facts and the reasonable inferences to be drawn from them. The rule applicable to such cases has been repeatedly announced by the appellate courts. As stated in Ely v. Railway Co., 158 Pa. 233, “ All that this court can do is to lay down the general rules, and to say that when the facts are uncontested, or the inference of negligence the only one that can be drawn, the court must pronounce the result as matter of law; but when the facts are in dispute, or the inference from them open to debate, they must go to the jury: ” Cohen v. Phila. & Reading R. R. Co., 211 Pa. 227.

The question of contributory negligence cannot be treated-as one of law, unless the facts and the inferences from them are free from doubt; if there is a doubt as to either the case is for the jury: Coolbroth v. Penna. R. R. Co., 209 Pa. 433. It is the exclusive province of the jury to pass upon the, credibility of witnesses, weigh the evidence and ascertain the facts : Kelton v. Fifer, 26 Pa. Superior Ct. 603.

On the trial below the case turned on the care exercised by the plaintiff’s driver when he turned his wagon from the car track to enter upon the intersecting street. He was driving on a wide thoroughfare having two car tracks in the middle of the street. If he looked around the side of his wagon before turning from the car track and made the turn in a reasonably careful manner, and the defendant’s cab was not likely to be at that time in his prospective line of travel he could- hardly be expected to do more. The street was clear for his use, the space was sufficient to make the turn in safety, and his conduct in using the street was a question of fact and not of law. The evidence tends to prove that while he was in the act of turning, with his wheels dragging on the rail before they were entirely free of the track, the defendant’s cab approached at a rate of speed of about nine miles an hour, the driver permitting the reins to hang loosely, and in making the effort to cut him out on the turn, or in trying to pass him, he forced a collision at the curb. If, this be true the driver of the cab had a full view of the covered wagon directly in front of him-and could see that it was about to obstruct his progress, so that it was his duty to have his horse under such control as to have avoided the accident by coming to a halt. The facts were disputed in some important particulars, and the inferences to be drawn from them were not free from doubt. They were rightly submitted to the jury for determination. The charge was fair and adequate, in explanation of the duties of the respective drivers. The plaintiff’s evidence was sufficient to warrant the verdict.

The judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Barnes v. Skiles.

      Sheriffs’ sales — Jurisdiction, of court — Setting aside sale — Acts of April 10, 1849, P. L. 597, and March 10, 1858, P. L. 91.
    The delivery by the sheriff to a purchaser at a sheriff’s sale of a paper stating that the purchaser had bought at the sale certain stock of a corporation at a price named, will not deprive the court of the jurisdiction which it has under the Acts of April 10, 1849, P. L. 597, and March 10, 1858, P. L. 91, to examine into the regularity of the sale, where it appears that the application to have the sale set aside was made before the return day of the writ, and within fifteen days after the sale, that neither transfer of the stock on the books of the company nor delivery of the certificate had taken place, and that there was- nothing in the special circumstances of the case which made the omission to move earlier prejudicial to the rights of any of the parties concerned.
    Where the evidence shows that the price brought at the sheriff’s sale was inadequate, that the sheriff had posted only two or three handbills instead of six as the law required, and that the defendant had no actual knowledge that a day and hour had been set for the sale, and that he was not present at the sale, the court is warranted in setting the sale aside.
    The matter of setting, aside sheriffs’ sales belongs to the class in which the courts exercise discretionary power. The appellate court will not presume that the court below acted arbitrarily and without proper proof of the facts upon which to base its action and will not reverse such action, whether setting aside or refusing to set aside the sale, unless there be manifest abuse of discretion.

      March 12, 1906:
    Argued Dec. 14, 1905.
    Appeal, No. 226, Oct. T., 1905, by Albert E. Barnes, from order of C. P. No. 2, Pbila. Co., March T., 1905, No. 8,740, making absolute rule to set aside sheriff’s sale in case of Annie E. Barnes v. Charles E. Skiles.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to set aside sheriff’s sale.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order making absolute rule to set aside sheriff’s sale.

      Henry Spalding, of Fell & Spalding, for appellant,
    cited: Lawrence v. Gallagher, 2 W. N. C. 261; Lex v. Potter, 16 Pa. 295; Weitzell v. Fry, 4 Dallas, 218; Media Title & Trust Co. v. Kelly, 185 Pa. 181; McMichael v. McDermott, 17 Pa. 358; Laird’s App., 2 Pa. Superior Ct. 300; Stroup v. Raymond, 183 Pa. 279; Swires v. Brotherline, 41 Pa. 135.

      A. L. Wanamaker, for appellee,
    cited: Gibbs v. Neely, 7 Watts, 305.
   Opinion by

Rice, P. J.,

This is an appeal from an order, made upon the application of the defendant in the execution, setting aside a sheriff’s sale of 49,174 shares of the capital stock of Thunder Mountain Gold Company, owned by and standing in the name of the defendant. On the day of the sale the deputy sheriff delivered to the purchaser a paper, the material part of which is as follows :

“ Philadelphia, October 9,1905.
“ Mr. Albert E. Barnes, bought at sheriff’s sale, A. E. Barnes v. Skiles, C. P. 2 M. T. 1905, No. 3740. S. W. Barnes v. Skiles, C. P. 3 M. T. 1905, No. 3741. All of defendant’s shares of stock and right, title and interest of, in and to Thunder Mountain Gold Company, being about 49,174 shares, . . . $5.00.
“ Received payment,
“ Peter Saybolt,
“ Deputy Sheriff.”

The first question presented by the appellant, the purchaser, is as to the power of the court. The Act of April 10, 1849, P. L. 597, extended throughout the state.by Act of March 10, 1858, P. L. 91, authorizes the court from which any execution or order of sale shall issue for the sale of personal property “ to inquire into the regularity and fairness of the sale at the instance of any party interested by execution, foreign or domestic attachment, or under a general assignment upon affidavit of the circumstances before delivery of the goods; and if it appear that the sale shall have been so irregular or fraudulent, as in the opinion of the court to have produced a sacrifice of the property to the prejudice of any such party, it shall be competent for the court to set aside such sale, and the same property may be again exposed to sale, as if no such previous sale had been made.” Whether or not'this act applies strictly to an application made by the defendant in the execution we regard as immaterial so far as a disposition of the present case is concerned. The principles embodied in the act are those which ought to control the disposition of the case.

It is argued that the court had no power to set aside the sale, because the application was not made until after delivery of the above quoted paper, which, it is contended, was a constructive delivery of the stock, and the only delivery the sheriff could make. But this paper was not a transfer of the stock, nor was it, in and of itself, complete evidence that the title had passed to the purchaser. It is quite different from a sheriff’s deed of real estate, and the principle, upon which it has been repeatedly held that after deed duly acknowledgéd in court and delivered it is too late to set aside the sale summarily, does not apply. Its words do not clearly import more than a receipt for the amount of the purchaser’s bid, and in determining whether the application to set aside the sale was made in time we think it cannot be regarded as having any other effect, standing by itself. We base this conclusion not alone upon the ground that the words “ delivery of the goods ” do not literally describe the act or event which is set up here as a bar to the application, but upon that and the additional ground that the reason of the limitation does not require that the delivery of such a paper be given the same effect as manual delivery of tangible property. The application having been made before the return day of the writ and within fifteen days after the sale, and neither transfer of the stock on the books of the company nor delivery of the certificate having taken place, and there being nothing in the special circumstances of the case which made the omission to move earlier prejudicial to the rights of any of the parties concerned, we hold that it was not made too late to give the court jurisdiction.

It is well settled that inadequacy of price, without more, is not sufficient ground for setting aside a sheriff’s sale: Myers’s Est., 192 Pa. 458; Stroup v. Raymond, 183 Pa. 279; Westmoreland Guarantee Building & Loan Association v. Nesbit, 21 Pa. Superior Ct. 150. But where the price is grossly inadequate the court may seize upon other circumstances in order to give relief: Ritter v. Getz, 161 Pa. 648; Phillips v. Wilson, 164 Pa. 350; Stroup v. Raymond, 183 Pa. 279; Light v. Zeller, 195 Pa. 315. The act of 1849 recognizes the authority of the court to set aside a sheriff’s sale of personal property for such irregularity in the sale as, in its opinion, produced a sacrifice of the property to the prejudice of the party complaining. Here it is admitted that the defendant had no actual knowledge that a day and hour had been set for the sale and was not present or represented at the sale. It is also admitted that, although the act of 1836 required the sheriff to post no fewer than six handbills, he posted only two, or at the most, three. This was a gross irregularity, and we do not regard it as a sufficient answer to the objection to say that no more effectual notice would have been given if the sheriff had posted six handbills on the billboard in his office. As to the question of adequacy of price the petitioner’s allegation was that the stock which sold for 15.00 was worth $30,000. While the respondent did not admit this, but alleged that the stock had no value except a speculative one, yet he did admit that prior to the sale he authorized the plaintiff’s attorney to bid for the stock up to $800, and agreed if the stock was bought for him for less than that amount to pay the plaintiff the difference between the $800 and the amount of the bid. The court was warranted in considering this as some evidence that the stock was worth much more than the price for which it sold.

The matter of setting aside sheriffs’ sales belongs to the class in which the courts exercise discretionary power. The appellate court will not presume that the court below acted arbitrarily and without proper proof of the facts upon which to base its action, and will not reverse such action, whether setting aside or refusing to set aside the sale, unless there be manifest abuse of discretion. In addition to the' foregoing-cases we refer to Germer v. Ensign, 155 Pa. 464; Laird’s Appeal, 2 Pa. Superior Ot. 800, and the cases there cited. We do not find that the court exceeded its power or was guilty of abuse of discretion in this case.

The order is affirmed and the appeal dismissed at the costs of the appellant.


author: Per Curiam,

text:
    Adams v. Berge, Appellant.

      Appeals — Quashing appeals — Justice of the peace.

    The Superior Court will quash an appeal from an order of common pleas quashing a certiorari to a judgment of a justice of the peace, where it appears that the justice had jurisdiction of the cause of action, and that the defendant had been served, but had neglected to take advantage at the proper time, and in the proper form, of the method provided by law for the correction of the irregularities in the proceedings before the justice of which he complained.
    Argued Jan. 8, 1906.
    Appeal, No. 10, Jan. T., 1906, by defendant, from order of O. P. Wyoming Co., Oct. T., 1904, No. 1, quashing writ of certiorari in case of Laura Adams v. W. H. Berge.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver JJ.
    Affirmed.
    Certiorari to a justice of the peace.
    The opinion of the Superior Court states the case.

      JSrror assigned was the order of the court.

      Charles R. Soper, for appellant.

      James W. Piatt, for appellee.

      March 12, 1906:
   Per Curiam,

That there were irregularities in the proceedings of the justice of the peace as shown by his transcript which would have warranted a reversal of the judgment, if the certiorari sued out by the defendant in the action, the appellant here, had been duly prosecuted, may be conceded. But the defendant did not file.exceptions to the record after it was returned, and in accordance with the rules of the common pleas the writ was quashed and judgment affirmed. More than two months after-wards he petitioned the court to reinstate the writ and permit him to file exceptions nunc pro tunc. A rule to show cause was granted, and although an answer was filed which under the rules of court cast on the petitioner for the rule the burden of proving the facts alleged in excuse of the default, so far as they were disputed, no depositions were taken on either side. Therefore the court was required to dispose of the rule upon the petition and answer. Looking at the facts set forth therein, so far as they are not in dispute, we cannot say that the court was not warranted in concluding that the default in filing exceptions was not excused.

There remains to be considered the assignments of error to the original judgment. The transcript of the record of the justice shows that the cause of action was within the jurisdiction of justices of the peace, and that the summons was personally served on the defendant the full length of time before the return day required in the case of nonresidents of the county. True, it is not affirmatively set forth in the transcript that he was a nonresident, and although he may have been in fact a nonresident, we do not say that the court would not have been justified in reversing the judgment because of that defect in the record. But the objection does not go to the jurisdiction of the justice over the subject-matter of the action —to adopt the language of the 22d sec. of the act of 1810 “the cause of action was cognizable before a justice of the peace ”— and there having been personal service of the summons, and the defendant having neglected to take advantage at the proper time, and in the forum established for the correction of such errors, of the irregularities in the proceedings, that clause of the same section of the act applies which declares that the judgment of the common pleas shall be final and no writ of error shall issue thereon. The law in this particular was not changed by the'act of 1879, extending the jurisdiction of justices to the sum of $300, nor by the act of 1889, giving the name appeal to all appellate proceedings, nor by the acts of 1895 and 1899, establishing the Superior Court and defining and enlarging its jurisdiction: Phœnix Iron Works Co. v. Mullen, 25 Pa. Superior Ct. 547, and cases there cited. It follows that the motion to quash must prevail.

The appeal is quashed and the record remitted to the court below.


author: Head, J.,

text:
    Weida v. Hanover Township, Appellant.

      Road law — Dedication—Plan of lots — Streets.
    Where a landowner lays out and records a plan of lots and sells the lots according to the plan, it will be presumed that he has dedicated to public use the streets included in the plan; and such streets will be deemed to have been accepted by the public if the public uses them or public money is spent upon them.

      Negligence — Municipalities—Infant-Street.
    Where a municipality permits a pool of water impregnated with acids to continue along the edge of a street without any intervening fence or barrier, and a child of tender age strays into the pool and is killed, the municipality will be liable in damages to the parents of the child. In such a case the finding of the body in the pool with the flesh badly burned by the acid justifies an inference that the child must have fallen into the pool, and that he could not struggle long against the deadly conditions that enveloped him.
    A mother cannot be charged as a matter of law with contributory negligence in permitting a child of tender years to escape from her house and stray to a dangerous spot in the immediate vicinity of the house, where it appears that, at the time, the mother was engaged in her household duties.
    Argued Jan. 9, 1906.
    Appeal, No. 45, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 1,071, on verdict for plaintiff in case of William Weida v. Hanover Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Trespass to recover damages for death of a child two and one-half years old. Before Lynch, J.
    The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $1,033.50. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Arthur Hillman, with him T. W. Hart, for appellant.
    — The road near which the drowning occurred was not dedicated to the public: Gowen v. Philadelphia Exchange Co., 5 W. & S. 141; Kirkham v. Sharp, 1 Whart. 323; Root v. Com., 98 Pa. 170; Weiss v. South Bethlehem Borough, 136 Pa. 294.
    The street was not accepted by the public: Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. Royce, 152 Pa. 88; Steel v. Huntingdon Borough, 191 Pa. 627; Com. v. Moorehead, 118 Pa. 344; In re Vacation of Alley in Pittsburg, 104 Pa. 622; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425.
    The parents of the drowned child contributed to the accident: Glassey v. Pass. Ry. Co., 57 Pa. 172; Johnson v. Pass. Ry. Co., 160 Pa. 647; Westerberg v. Kinzua Creek, etc., R. R. Co., 142 Pa. 471; Feehand v. Dobson, 10 Pa. Superior Ct. 6.
    The place, time and cause of death were not proven: Allen v. Kingston Coal Co., 212 Pa. 54.

      Rush Trescott, for appellee.
    — The street in question was undoubtedly dedicated to public use : Pearl Street, 111 Pa. 565; Com. v. Llewellyn, 14 Pa. Superior Ct. 214.
    The street was accepted: Trickett on Road Law, p. 609; Com. v. Moorehead, 118 Pa. 344; Com. v. Llewellyn, 14 Superior Ct. 214.
    The township was guilty of negligence: Duffy v. Sable Iron Works, 210 Pa. 326.
    Death was due to the negligence of the defendant: Allen v. Willard, 57 Pa. 374; City of Scranton v. Dean, 2 W. N. C. 467.
    The parents were not guilty of contributory .negligence : Duffy v. Sable Iron Works, 210 Pa. 326; Del Rossi v. Cooney, 208 Pa. 233.
    March 12, 1906:
   Opinion by

Head, J.,

By its seventh point the defendant asked the court below to instruct the jury that “ under all the evidence the plaintiff cannot recover and the verdict should be for the defendant.” The refusal of this point is the sole error assigned. We have nothing in the record before us requiring us to examine the correctness of any ruling made during the trial on the admission or rejection of evidence or the soundness of the instructions, on the legal principles involved, contained in the charge to the jury. We have simply and practically a demurrer to the whole of the evidence.

Appellant earnestly contends there was no sufficient evidence to warrant a finding that there had ever been a dedication to public use, by the former owner, of Dexter street or at least of that portion of it west of Oxford street; and further that there had ever been any acceptance by the public of such a dedication if made. Doubtless, dedication’ is a question of intention, but the inquiry on this subject is properly directed to the intention existing at the time of the alleged dedication rather than to the state of mind of the owner years afterwards. Naturally, then, the acts of the owner done at the time would be the media through which we would expect to discover his intention.

We have in this case evidence that Dexter street was one of a number of streets laid out in a large plan of lots adjacent to the city of Wilkes-Barre. The streets were named, their widths given and the lots all regularly numbered on a plan which the owner had recorded in the usual way in the recorder’s office in 1891. Prom that time on lots were sold and conveyed according to this recorded plan and Dexter street with the other streets was actually opened on the ground from one end to the other. Such acts by an owner of land have been regarded, in all the cases cited or examined, as, at least, strongly persuasive evidence of an intention to dedicate. In many of them, indeed, the courts seem to consider acts of this character as amounting to an actual dedication: In re Opening of Pearl Street, 111 Pa. 565; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. Llewellyn, 14 Pa. Superior Ct. 214. In no case that has been called to our attention has such testimony ever been excluded as irrelevant or held insufficient to sustain a verdict. True, the former owner when called as a witness denied any intention of dedicating the portion of Dexter street west of Oxford, and the defendant had the benefit of this testimony before the jury. But as against this there were the facts that the street was shown on the plan, with lots laid out and numbered on both sides of it, west of Oxford street, just like it was east of that street and just like the other parallel streets west of Oxford. If none of the streets on the west side of Oxford were dedicated, about one-half the lots in the entire plan were without any street frontage. If all the others were dedicated it is difficult to see any evidence that the west end of Dexter street alone was excepted from the general intention. Under these circumstances we are unable to say that the verdict, in this respect, was without evidence to support it. But a dedication of the street by the owner, unless followed by evidence of an acceptance by the public, would be valueless to the plaintiff. Without such acceptance no act of the owner of the soil could impose upon a municipality the obligations and responsibilities incident to the lawful opening for travel of a public road or street within its limits. It may be conceded that such acceptance is ordinarily indicated by some formal act of the municipal officers having such matters in charge. But the public which is the master need not await the formal action of its own servants and agents. By. its own use of a street dedicated, opened and offered for travel, it may plainly and conclusively signify its acceptance of the owner’s offer and thereby acquire all the rights and assume all the responsibilities that would follow had the road been laid out and opened by proceedings in court: Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. Moorehead, 118 Pa. 344. There was evidence that work had been done by the township officers and public money expended on Dexter street as platted and opened. True, this was chiefly east of Oxford -street, but that portion may have been most traveled and in greater need of improvement. Because the work done did not cover every foot of the street from end to end, it does not follow that the public right vested only in that portion of the width or length of the street actually worked on. There was some work done west of Oxford street after its grade had been cut down to slope Dexter street into it.

But it is not essential in order to establish an acceptance by the public, of a street laid out and dedicated by the owner, to show an expenditure of public money thereon: Com. v. Moorehead, 118 Pa. 344.

There was positive testimony from the plaintiff, his wife and his other witnesses, that there had been a continuous use of the street by the people of that section of the community, on foot and by vehicles, from the time it was dedicated and opened down to the time of the trial. The use was more extensive by pedestrians than by vehicles, and was greater by the latter before Oxford street was cut down than afterwards.

This evidence, if believed, tended to show, not merely an occasional use of the street by an individual or two, but that the public generally in that vicinity claimed and exercised the right to use it whenever and by whatever means necessity or inclination led to its use. No more than this could be predicated of the outlying portions of many streets in the towns and villages throughout the state, and such evidence we regard as sufficient to warrant the finding that Dexter street as platted, opened and dedicated by the owner, had been accepted by the public and thus become one of the highways of the township.

The house occupied by the plaintiff and his family stood on the northwest corner of Oxford and Dexter streets. Just in the rear of this lot and extending for some distance along the north side of Dexter street was a large pool or pond in which the water was not only deep but highly impregnated with acids discharged into it from a knitting mill near by. The street was several feet higher than the water and the declivity sharp and sudden. There was no fence or other barrier along the edge of the street. The uncontradicted evidence of several witnesses declared the place to be dangerous and that a child or other person on the street making a misstep could easily fall into the pool. Under these circumstances did the defendant exercise reasonable care in leaving its highway unprotected ? Such a question only a jury, could properly answer, and we do not understand it to be seriously contended that any error was committed by the court in submitting it.

The child was last seen alive when it was left to play in the dining room while the mother looked after her household duties. He succeeded in raising the latch and getting' out through the door opening on Dexter street. He would then be on the street within a short distance of the dangerous point already referred to. Some time afterwards his dead body with the flesh badly burned by the acid in the water was found in the pool within a few feet of that spot. The father testified he saw in the edge of the water “ where he had fell on his hands and knees in the mud there.” The inference that a child of his age could not struggle long against the deadly conditions that enveloped him as soon as he got into the water, and hence that he must have fallen in at or near the spot where his body was found, was a fair and reasonable one springing naturally from the facts in evidence. It was therefore a proper one for the jury to adopt.

In Morgan v. Westmoreland Electric Co., 213 Pa. 151, Mr. Justice Fell says:

“ There was no direct evidence that the deceased was killed by coming into contact with the iron brace. But direct evidence was not essential. The cause of death might properly be infei'red from the location of his body with relation to the dangers to which he was exposed.”

Finally, it is contended that the learned judge should have declared as matter of law that the plaintiff was guilty of contributory negligence and for this reason should have affirmed the point already quoted and withdrawn the case from the jury. We cannot assent to this proposition. Where the conditions out of which an alleged act of negligence arises are such that our common experience enables us to at once discover what men of ordinary prudence and care would do or re- * frain from doing, the courts may properly define the standard of duty to be observed and declare that a failure to measure up to that standard is negligence per se. We have not, as we view it, such a case before us. Neither do we think that the case of Johnson v. Reading City Pass. Ry. Co., 160 Pa. 647, cited and relied on by appellant, sustains its contention here. In that case a mother standing in her own doorway, “when there was nothing whatever to prevent watchfulness, permitted her child to come out of the open door, pass at her feet out to a railway and there in full view place itself on the track with an approaching car also in full view.” On the contrary, we regard this case as more nearly resembling the one described by Mr. Justice Dean in his opinion in that case in the following language :

“ It would be a harsh rule to hold that this mother, in her pecuniary circumstances, was bound to give her undivided attention to her child to the neglect of all other wifely duties, and there is no such rule of law in Pennsylvania, as we have held in very many cases. If the child had escaped from the house while the mother’s attention was given to some other of the many cares which burden the woman who keeps her own house, the case would have come within the rulings in Kay v. Penna. Railroad Co., 65 Pa. 269 and like cases.”

A careful study of the whole record has not convinced us that the court below committed any error in submitting the case to the jury and their verdict has ample support in the evidence offered and received at the- trial.

Judgment affirmed.'

Portee and Moeeison, JJ., dissent.


text:
    Collett, Appellant, v. Scott.

      Constitutional law — Bill of rights — Equal protection of the law — Employment certificates — Mines and mining — Minors—Act of May 2,1905, P. L. ,344.
    The provisions of the Act of May 2, 1905, P. L. 344, which classify minors ‘ to whom employment certificates may be issued, violate the first section of the fourteenth amendment of the federal constitution.
    While every presumption possible in favor of the validity of the legislative classification is to be made, yet where it is apparent that it is not based, on any reasonable ground, or any difference which bears a just and proper relation to the subject with reference to which the classification is attempted, but is a mere arbitrary selection, it will not relieve the statute from the equality clause of the fourteenth amendment.
    Argued Jan. 10, 1906.
    Appeal, No. 49, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1905, No. 833, sustaining demurrer to return* to writ of alternative mandamus in ease of Joseph Collett, by his father and next friend, Robert Collett, v. E. H. Scott.
    March 12, 1906:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head, and Beaver, JJ.
    Affirmed.
    Demurrer to return to writ of alternative mandamus.
    The opinion of the Superior Court states the case.

      Error assigned was in refusing mandamus.

      Cormac Francis Bohan, for appellant.
    — It is the prerogative of the legislature to prescribe regulations founded on nature, reason and experience in determining the kind of labor and the length of time it shall be permitted by either men, women or minors: Com. v. Beatty, 15 Pa. Superior Ct. 5; Barbier v. Connolly, 118 U. S. 27 (5 Sup. Ct. Repr. 357); Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. Repr. 383).
    The act creates no improper classification: Atchison, etc., R. R. Co. v. Matthews, 174 U. S. 96 (19 Sup. Ct. Repr. 609); Erb v. Morasch, 177 U. S. 584 (20 Sup. Ct. Repr. 819); Clark v. Kansas City, 176 U. S. 114 (20 Sup. Ct. Repr. 284); Connolly v. Union Sewer Pipe Co., 184 U. S. 540 (22 Sup. Ct. Repr. 431); American Sugar Refining Co. v. Louisiana, 179 U. S. 89 (21 Sup. Ct. Repr. 43); Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283 (18 Sup. Ct. Repr. 594).

      J. B. Woodward, with him James H. Torrey, for appellee.
    The act is unconstitutional: Ritchie v. People, 155 Ill. 98 (40 N. E. Repr. 454); Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499); Mugler v. Kansas, 123 U. S. 623 (8 Sup Ct. Repr. 273); Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357); State v. Montgomery, 94 Maine, 192 (47 Atl. Repr. 165); Sayre Borough v. Phillips, 148 Pa. 482; Com. v. Snyder, 182 Pa. 630.
   Opinion by

Rice, P. J.,

This is an appeal _from judgment in favor of the defendant, a borough common school superintendent, on demurrer to his return to an alternative writ of mandamus, the object of which was to compel him to perform the duties prescribed by the Act of May 2, 1905, P. L. 844, and to issue to the petitioner an employment certificate as provided by that act. In his return the defendant admitted the facts alleged in the petition, but claimed that he could not be required to perform the acts: First, because the provisions of the act relative to the issuance of employment certificates do not include minors over sixteen years of age; second, because, being a public officer within the protection of sec. 13, art. 3 of the constitution of Pennsylvania, the enforcement against him of the provisions of the act whereby extremely onerous duties- are imposed upon common school superintendents, for the performance of which compensation is explicitly denied by the act, would be in contravention of that section of the constitution; third, because the provisions of the act referred to under the first head are in violation of the 1st sec. of the 14th amendment of the federal constitution. The court below decided against the defendant upon the first two propositions, and while his counsel do not in their printed brief expressly assent to these conclusions, they have presented to us no argument in opposition to them. Therefore, and also because we all are of opinion that the court was right in sustaining the third proposition, we do not feel called upon to discuss them with a view to determining whether or not the case can be decided upon them without consideration of the federal question. In saying this we are not to be understood as intimating a doubt as to the correctness of the conclusions of the court upon the first two questions.

Conceding, for the purposes of the case, all that the learned counsel for the appellant has so forcibly and ably argued in support of the claim that the legislature has power to prohibit the employment of minors under a certain age in or about anthracite coal mines, and the power to prescribe certain educational qualifications as a condition precedent to the right of minors who have reached the specified age to be so employed, without imposing the same restrictions upon minors before engaging in other employment, there remains the serious objection, which has not been satisfactorily answered, that the legislative provisions under consideration make a discrimination between minors of the same sex and age, the same mental and physical ability, the same experience in this avocation and the same educational qualifications, permitting members of-one class to obtain employment certificates, without which no minor can be employed at'all, upon much easier terms than are required of members of the other class. The first class consists of those who are able to produce, in addition to the affidavit of parent, guardian or custodian, a certificate of registration of birth, baptism or circumcision as kept by any religious denomination, or a certificate of registration of birth as kept by any public authority, or, in the case of a foreign born child, a true copy of passenger manifest, passport or other official record on file in the office of the commissioner of immigration at the port of arrival. The second class consists of those who are unable to produce either of such certificates or copy of such official records. A member of the first class may obtain an employment certificate, if he can read at sight and write legibly simple sentences in the English language, while a member of the second class, although of the same age as the member of the first class, and perhaps older, not only (1) must be able to read at sight and write legibly simple sentences in the English language, but, in addition to the affidavit of parent, guardian or custodian, is required (2) to produce a statement of the principal teacher of the last school which he attended certifying that he has received instruction in reading, spelling, writing, English grammar and geography and is familiar with the fundamental operations of arithmetic, to and including fractions; and (8) to produce such evidence as will enable the common school superintendent to certify that he regularly attended the public schools, or schools equivalent thereto, during the year previous to applying for such school record, and for the period required by the compulsory attendance laws of this commonwealth. Proof that he is of the prescribed age, no matter how convincing, will not take the place of these additional prerequisites which a minor of the second class must show that he possesses in order to obtain an employment certificate. Doubtless the strict enforcement of these regulations applicable to this class would exclude from employment in or about the mines a very large proportion of minors of the second class under fourteen years of age, and thus tend to prevent imposition on the part of such as to their age; but it is equally apparent that it would make it impossible for great numbers of minors between fourteen and twenty-one years of age, who are able to read at sight and write legibly simple sentences in tbe English language, and who can prove conclusively that they are of the required age, to obtain an employment certificate until they have undergone school training for a considerable period in other branches of education. To require this in order to put them on an equal footing, as to the right to labor in or about anthracite coal mines, with the minor who is able to produce a certificate of registration of birth, baptism or circumcision, or copy of an immigration record, is to deny them the equal protection of the laws. The 1st section of the 14th amendment does not prohibit classification of the subjects of legislation, and the application of different regulations to different classes. Nor are the courts warranted in declaring a classification made by the legislature to be in conflict with the section, merely because in their judgment it is unnecessary, unwise or inexpedient. But although it is primarily a legislative question, it is not beyond the jurisdiction of the courts to inquire, and determine, whether the attempted classification transgresses constitutional limitations of legislative power. “ While good faith and a knowledge of existing conditions on the part of the legislature is to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation is to make the protecting clause of the fourteenth amendment a mere rope of sand, in no way restraining state action : ” Justice Brewer in Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150 (17 Sup. Ct. Repr. 255). Arbitrary selection can never be justified by calling it classification. Even in the most extreme cases cited in the appellant’s brief it is expressly or impliedly conceded that while every presumption possible in favor of the validity of the legislative classification is to be made, yet where it is apparent that it is not based on any reasonable ground, or any difference which bears a just and proper relation to the subject with reference to which the classification is attempted, but is a mere arbitrary selection, it will not relieve the statute from the equality clause of the 14th amendment. The learned judge below reached the conclusion that the provisions of the act under consideration are, for that reason, in conflict with that clause, but that sec. 1, which makes it unlawful to employ any. minor under sixteen years inside of any anthracite coal mine, or to employ any minor under fourteen years in any anthracite coal breaker or colliery, or around the outside workings of any anthracite coal mine, and sec. 2, which prescribes the remedy for violation of the provisions of sec. 1, are a valid and constitutional exercise of the police power, and are enforceable, notwithstanding the invalidity of the other provisions of the act relative to employment certificates. We concur in his conclusion and do not find that we can add anything further to what is clearly set forth in the opinion filed by him in support of it.

The judgment is affirmed.


author: Porter, J.,

text:
    Chulek v. United States Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Pleading—Statement of claim.

    Where in an action on a policy of fire insurance, covering a building and furniture, the plaintiff in his statement of claim avers the right to recover the whole amount of the insurance both that on the building and that on the furniture, without setting forth specifically the loss upon the building and that upon the furniture, the statement may be amended so as to show the amount of the loss upon the two classes of property. In such a case the amendment introduces no new cause of action.

      Insurance — Fire insurance — Sole and unconditional ownership.

    Where a policy of fire insurance provides that the contract shall be void if any change shall take place in the interest, title or possession of the subject of the insurance, a conveyance by the insured to a third person followed by a conveyance by such person to the insured’s wife, will constitute a violation of the covenant; and this is the case although the insured and his wife and the person through whom the conveyance was made to the wife unite in testifying that the deed by the insured was the result of a fraudulent conspiracy between the insured’s wife and such third person.
    In the above case it appeared that the deed from the insured was executed during a short interval between the expiration of the lien of a judgment and the revival of the same. Held, that the record of the judgment was admissible in evidence to show a motive for the conveyance to the insured’s wife, and to contradict the testimony as to the conspiracy. - •
    Argued Jan. 11, 1906.
    Appeal, No. 18, Jan. T., 1906, by defendant, from judgment of C. P. Lackawanna Co., March T., 1904, No. 670, on verdict for plaintiff in case of Elko Chulek v. United States Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

    Reversed.
    Assumpsit upon a policy of fire insurance. Before Edwards, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [Then comes the evidence of the defense as to the judgment entered by Mendlesohn. It seems that the plaintiff in this ease owed, or we presume that he owed, a man by the name of Mendlesohn in Mayfield, a certain sum of money, amounting to something over $100, and that Mendlesohn had the judgment against him in 1897, and that this judgment had been on record quite a number of years and that a scire facias was issued to revive the judgment in 1892. Now yóu see the purpose óf that testimony, and it is a mere circumstance, and I admitted it because it was a mere circumstance, and not because of its own effect without other circumstances connecting it with this case to have any probative value at all. The point they want to make is that Mendlesohn was trying to collect this judgment somewhere about the fall of 1902, and therefore that this transfer was made of the property from the plaintiff to his wife, it happening about the same time. Now if it was only a mere coincidence, if the fact that this transfer occurred or this change in the title of the property was made about the same time as the five ye^rs expired as to the lien of the judgment, if it was a mere coincidence, it has no bearing on this case at all, and it has very little bearing at any rate, because there'is nothing here in evidence to show that this plaintiff did not have other property, that is, there is nothing here to show that he did not own another lot or two lots or a dozen lots, so far as this claim of Mendlesohn is concerned. Mendlesohn is not here complaining or making any claim. ' At any rate it may be argued on the part of the plaintiff even as to this Mendlesohn claim, that the lot is still there, the fire didn’t burn the lot out, he can still collect his money from the lot if it is worth anything. There is no testimony here as to the value of the lot, but you see how a little circumstance might be evidence and at the same time have very little weight unless you can join it with other circumstances so as to make a chain of circumstances or make the whole thing of probative value in order to support a contention of one kind or another. I have been particular on this point because I admitted the testimony rather unwillingly and at the same time I saw that it might be a circumstance which should be considered by a jury.] [6]
    Defendant presented these point:
    1. That the deed from Chulek to Kawash being voidable only and not void, and it not being shown that there was any reconveyance from Kawash or any other person to Chulek, nor any demand made, or steps taken by Chulek to obtain a recission thereof before the fire occurred, the conveyance by Chulek to Kawash and Kawash to Mary Chulek, constitutes such an alienation as, by the terms of the policy, would defeat a recovery and your verdict must be for the defendant. Answer: This point is refused. [7]
    4. That inasmuch as there was an actual alienation of the property by a deed properly executed, delivered and recorded, and the grantee of the deed was in possession of the property at the time of the fire, under a claim of right, which she could enforce against the defendant in this case or any other, save only the plaintiff, that in so far as the rights of the defendant are concerned, it is immaterial whether the deed was obtained by fraud or not, and your verdict should be for the defendant. Answer: The fourth point is refused without reading. [9]
    5. That if this deed was obtained by fraud, it was fraud of a third party, and cannot affect the rights of the defendant in this case, nor enable the plaintiff to escape the conditions of the policy. Answer: The fifth point is refused without reading. [10]
    Verdict and judgment for plaintiff for 11,100. Defendant appealed.

      Errors assigned were (1, 2) in allowing the statement of claim to be amended; (6, 7, 9, 10) above instructions, quoting them.

      H. S. Harding and H. W. Mumford, for appellant.
    — An amendment introducing a new cause of action will not be permitted: Keasby v. Donalsoh, 2 Browne, 108; Grier Bros. v. Assurance Co., 188 Pa. 334; Noonan v. Pardee, 200 Pa. 474.
    March 12, 1906:
    There can be no question that, in the absence of the fraud alleged by the plaintiff in the procurement of the deed, this .conveyance was sufficient to avoid the policy: Bemis v. Insurance Co., 200 Pa. 340; Kompa v. Insurance Co. 28 Pa. Superior Ct. 425.
    A deed obtained by fraud is voidable at the instance of the party defrauded, but not void ab initio: Washburn on Real Property, sec. 2223 ; Mitchell on Real Estate, page 478.
    This rule has been followed by .our Supreme Court in numerous cases: Pearsoll v. Chapin, 44 Pa. 9; Negley v. Lindsay, 67 Pa. 217; Christy v. Sill, 95 Pa. 380; Lyon v. Phillips, 106 Pa. 57; Keller, v. Lamb, 202 Pa. 412; Inlow v. Christy, 187 Pa. 186; Acetylene Co. v. Smith, 10 Pa. Superior Ct. 61.
    The fraud set up was the fraud of a third party, with which the defendant had nothing to do, and could not in any way affect the rights of the defendant: Compton v. Bunker Hill Bank, 96 Ill. 301; Sprugin v. Traub, 65 Ill. 170.

      A. A. Vosburg, with him H. D. Carey and John R. Edwards, for appellee.
    — The amendment was proper: Wilhelm’s App., 79 Pa. 120; Rodrigue v. Curcier, 15. S. & R. 81.
    A void sale is manifestly not within the terms of the policy: Wood on Insurance, section 326; Strong v. Insurance Co., 27 Mass. 40; Kitterlin v. Insurance Co., 10 L. R. A. 220; Horn v. Keteltas, 46 N. Y. 605; Barry v. Ins. Co., 110 N. Y. 1 (17 N. E. Repr. 405); Hodges v. Ins. Co., 8 N. Y. 416; Smith v. Ins. Co., 50 Me. 96; Gerling v. Ins. Co., 39 W. Va. 689 (20 S. E. Repr. 691); Ins. Co. v. Spankneble, 52 Ill. 53; Pearman v. Gould, 42 N. J. Eq. 4 (5 Atl. Repr. 811); Howard Fire Ins. Co. v. Bruner, 23 Pa. 50.
   Opinion by

Porter, J.,

The assignments of error which refer to the allowance of the amendment of plaintiff’s statement are not well founded. The statement as originally filed claimed of the defendant, “ the sum of eleven hundred dollars, according to a certain policy of insurance, in writing .... a copy of said policy is hereto attached and made part hereof.” Under the provisions of the policy attached, the defendant contracted to idemnify the plaintiff against loss by fire, “ to an amount not exceeding eleven hundred dollars, to the following described property, while located and contained as described herein, and not elsewhere, to wit: . . . . $1,000 on the two-story frame building .... occupied as a dwelling and situated west, side May street, May-field, Pa.; $100 on household furniture .... while contained in the above described building.” The statement further averred that the plaintiff had performed all the conditions on his part to be performed, and “ That on the 14th day of November, 1903, at Mayfield, Pa., the premises in said policy of insurance mentioned were destroyed by fire.” This original statement was not specific, in that it did not state the details of the claim, the amount of the loss upon the building and that upon.the personal property, and for that reason was not technically accurate, yet it did aver the right to recover the whole amount for which the defendant company had insured the property, both building and furniture. That statement did not aver a loss of $1,100 upon the building, nor how much of the loss was due to the destruction of the building and the personal property respectively. A fair interpretation of its meaning was: “You agreed to insure me against loss by fire in the sum of $1,100, $1,000 of said amount upon my dwelling house and $100 upon my household furniture, so long as it remained in that house; the house has been destroyed by fire, and I now assert the right to recover, under the covenants of your policy, the entire amount for which you agreed to become liable, upon both building and furniture.” This was an assertion of the right to recover the amount of the insurance on both building and personal property, the amendment of the statement so as to make it formally declare that both building- and personal property had been destroyed by the fire introduced no new cause of action, it adhered to the covenants originally declared upon and did not go outside of the policy: Rodrigue v. Curcier, 15 S. & R. 81; Wilhelm’s Appeal, 79 Pa. 120. Had the original statement specifically declared for a loss of $1,100 upon the building alone, a different question would have been presented. The first and second specifications of error are dismissed.

The policy of insurance was dated and issued August 28, 1901, and contained the following covenants: “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, 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; or if any change, other than by the death of an insured, shall take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise.” There was no agreement indorsed upon or added to the policy modifying or waiving these covenants. There was no evidence that the company or any of its agents had, until after the fire, knowledge or notice that the interest of the insured in the building was other than unconditional and sole ownership, at the time the policy issued, or that there had been any subsequent change in the interest, title or possession of the subject of insurance, so far as the building was concerned. The plaintiff, presumably for the purpose of showing the title under which he held the land, offered in evidence a deed, to him, from the Hillside Coal & Iron Company, dated July 9, 1902, more than ten months after the contract of insurance was effected. Unless the plaintiff had title to the land prior to the date of that deed the policy of insurance was void from the day it issued, and never became operative. That question does not seem to have been raised in the court below, however, and we need not consider it.

The plaintiff and his wife, Mary Chulek, by deed dated December 2, 1902, and recorded on January 2, 1908, conveyed the lot of land and the building insured, which stood upon it, to Michael Kawash; who by deed dated January 2, 1903, and recorded February 18,1903, conveyed the same to Mary Chulek, the wife of plaintiff. The record title was, by force of these deeds, vested in Mary Chulek and so continued until after the fire, on November 14, 1903, and down until the time of the trial in the court below, the plaintiff having taken no steps to set aside those conveyances. The defendant company offered these deeds in evidence and contended that there had been a change in the “ interest and title of the subject of insurance,” within the meaning of the covenant of the policy above recited, and that the policy had for that reason ceased to bind the company, as to the building. The court admitted evidence on the part of the plaintiff, under objection and exception, that he had been induced to execute the deed to Kawash by the fraud of his wife and the grantee; that his wife, Mary, had importuned him to convey the property to her and upon his refusal to do so she and Kawash had procured him to execute the conveyance to the latter, by representing that it was a lease, for the property; that plaintiff did not understand the English language and was not aware of the contents of the paper which he executed, and that Kawash represented to him, at the time of the execution, that the instrument was a lease. There can be no doubt under the evidence that the plaintiff did actually execute the instrument, which was in fact a deed of the property to Kawash. The court instructed the jury that if the plaintiff executed the deed under the belief that he was signing a lease, that said belief was induced by the false and fraudulent representations of the grantee therein; that the deed from the grantee to the wife was made in pursuance of a fraudulent conspiracy between this grantee and the wife for the purpose of procuring a transfer of the title from the husband to the wife, and that the plaintiff did not learn until after the fire that he had signed the deed for the property; then there was no such passing of. the ownership or transfer of the title from the plaintiff as would void the policy, and under these instructions there was a verdict for the plaintiff for the whole amount of his claim.

The ease with which the solemn covenants of a contract may be swept away is illustrated in this case. The only testimony tending to establish the fraudulent character of the deed was that of the plaintiff who made it and that of his wife and Kawash who are alleged to have perpetrated the fraud which induced its execution. The plaintiff testifies he was deceived and his wife and his friend Kawash, brazenly testify that they were guilty of a fraud, and as a consequence the insurance company, which was no party to the fraud, is deprived of the benefit of a condition upon which its liability was by its contract made to depend. The whole fabric of the allegation of fraud is founded upon the assertion that the plaintiff was ignorant of the English language, and did not know that he was signing a deed, yet he has lived in this country for eighteen years and this deed was executed in the office of a reputable lawyer and acknowledged at the office of a justice of the peace, and at both of said places it was stated to be a deed.' The case was tried almost a year and a half after the fire occurred, at which time the plaintiff had notice of the condition of the title, yet down to the time of the trial he had taken no step to set the conveyance aside, nor was there a scintilla of testimony from which it could be inferred that he’ ever intended to set it aside.

The fraudulent acts which are alleged to have induced the conveyance by plaintiff affected individual interests only; the deed was not void but voidable only as to Chulek, who must exercise his election to reclaim the property within a limited time, or the title which passed under the deed will, by virtue of the Act of April 22, 1856, sec. 6, P. L. 532, become indefeasible. As against a bona fide purchaser for value and without notice of the fraud, the right of Chulek to set aside the deed could not even now prevail. Such transactions are only relatively void, not so void as to prevent the party intended to be injured by the fraud from renouncing the privilege which the law allows him of rejecting the transaction altogether, or from ratifying it, and thus making it his own: “ And not so void as to make the wrongdoing party a trespasser for acting under it, or as to be no inconvenience or obstruction to the party seeking to be restored to his rights, especially if it has been in whole or in part performed: ” Pearsoll v. Chapin, 44 Pa. 9; Negley v. Lindsay, 67 Pa. 217; Christy v. Sill, 95 Pa. 380; Lyon v. Phillips, 106 Pa. 57; Inlow v. Christy, 187 Pa. 186.

Chulek was, prior to the execution of the conveyances which vested the legal title in his wife, the “ unconditional and sole owner ” of the building, which was “ on ground owned by the insured in fee simple; ” and it was necessary that he should be so in order to comply with one of the conditions of the policy above recited. Did the conveyances which vested the title in his wife work any change in the interest, title or possession of the insured in the subject-matter of the insurance, within the meaning of the above recited covenants of the policy ? Assuming that the conveyances were procured through the fraud of the wife of the insured and Kawash, what was their effect upon the interest of the insured in the property? :The conveyanees vested in the wife' of the insured the right to act under them without becoming a trespasser, and they were an inconvenience and obstruction to the plaintiff had he sought to be restored to his rights; his interest in the property had been reduced to the privilege which the law allows him of ratifying or rejecting the conveyances, and in case he took the latter course he must assert the right within the period and establish it in the manner prescribed by the act of 1856: Pearsoll v. Chapin, 44 Pa. 9; Negley v. Lindsay, 67 Pa. 217. Thé title, which had been absolute and indefeasible at the time the policy issued, was by the conveyances made uncertain and dependent, as to the interest of the assured, upon future events. The défendant company had an unquestionable right to protect themselves from being drawn into such uncertainties as to ownership, by proper covenants in their contract, and we are convinced that the covenants of this policy give them such protection.

There, had been a change of interest in and title to the property, within the meaning of the contract. It was the privilege of the company to decline to issue the policy, unless the insured agreed that his right to indemnity should be subject to the stipulated condition. The parties were competent to contract, and, in the absence of proof of waiver or grounds of estoppel, the policy is the law of the relation of the insurer and insured. That terminated if the condition was broken, and could not be restored without the express or implied assent of the insurer. Unless, therefore, the plaintiff is relieved from responsibility because he was ignorant of the effect of the instrument which he had executed, he is not entitled to recover. In, the recent case of McCurdy v. Insurance Company, ante, p. 77, our Brother Henderson said, in discussing a condition which avoided a policy: “ The question is not one of good faith on the part of the insured, but one of contract, of absolute obligation, under a mutually understood state of facts.” The defendant had no power to determine what leases, agreements or deeds the plaintiff might execute, but it had the right to protect itself by its contract against the results of his acts, whether he intended. those results or not, so long as the insurer did not induce the acts. The covenant of the policy incorporated for this purpose- was in these words: “ This entire policy shall be void, .... if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise.” It was against any change in the interest of the insured in the property that the prohibition was directed, and the terms employed were broad enough to cover any change that might occur. The parties agreed that in case there was any change of the interest of the insured, whether by his voluntary act or otherwise, the policy should become void unless the change was thereupon noted. If the plaintiff intended to have the title to the property vested in his wife and for that purpose conveyed it to Kawash, then there was a change by his voluntary act; if he was by fraud’ induced to execute the deed then there was a change of his interest “ otherwise ” than by his voluntary act. There was in this instrument no exception in favor of conveyances induced through the fraud of third parties, and the terms used give no room to imply any. The conveyance by Chulek to Kawash and by Kawash to Mary Chulek, constituted such a change of the interest of the insured as, by the terms of the policy, to defeat a recovery, for the loss upon the building: Dornblaser v. Insurance Company, 20 Pa. Superior Ct. 536; Kompa v. Franklin Fire Insurance Company, 28 Pa. Superior Ct. 425; McCurdy v. Insurance Company, ante, p. 77; Finley v. Lycoming County Mutual Insurance Company, 30 Pa. 311. Whether Kawash and Mrs. Chulek had been guilty of a fraud was, as against this defendant, immaterial. “ 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: ” Bemis v. Insurance Company, 200 Pa. 340. The case last cited must be accepted as in effect overruling: Burkhart v. Insurance Company, 11 Pa. Superior Ct. 280. The seventh, ninth and tenth specifications of error are sustained.

The lien of the Mendelssohn judgment had expired shortly before the day upon which the deed in question bears date, and proceedings to revive it were not commenced until after that day but before the day when the deed was acknowleged. If the deed was made on the day it bore date and for the consideration which it stated, Mendelssohn would certainly have had difficulty in collecting his judgment. These facts, taken in connection with the evidence of the plaintiff’s witnesses to the effect that no consideration was actually paid for the conveyance to Kawash, were proper for the jury to consider in passing upon the truth or falsity of the testimony of the plaintiff, his wife and Kawash. The court admitted the Mendelssohn judgment in evidence, but in charging the jury said that it had very little bearing on the case, and called the attention of the jury to the fact that Mendelssohn was not there complaining, that the lot was still there and Mendelssohn could collect his money from the lot, and that there was no evidence that the insured did not have other property. Mendelssohn was not a party to this suit and had no right to complain at that trial. That the lot was still in its old place is true, but until after this fire the record showed that Mendelssohn had no lien upon it. There was no evidence that the plaintiff had any other property. The record of the judgment was not offered for the purpose of showing that Mendelssohn was entitled to this insurance money, but for the purpose of showing a motive which might have induced the plaintiff to execute a conveyance of his property for an apparently full consideration, when in fact the conveyance was simply for the purpose of having the property conveyed to his wife. The sixth specification of error is sustained.

The judgment is reversed and a venire facias de novo awarded.

Hendekson, J., dissents.


text:
    Flaherty v. Scranton Gas and Water Company, Appellant.

      Negligence — Evidence—Inhalation of gas — Opinion of physicians — Expert.
    In an action to recover damages for the death of a child two reputable physicians of long practice and high standing, each of whom saw, and carefully examined the child, one at the beginning, the other near the fatal termination of its sickness, and each of whom was apprised of the conditions under which the sickness began, gave it as their deliberate opinion and judgment that the child died from the effects of an inhalation of gas. Held', that such testimony could not be rejected nor ignored.
    In an action against a gas company to recover damages for the death of an infant, it appeared that the employees of the defendant went into plaintiff’s cellar to make some repairs in the gas service, and while so engaged permitted the escape of a volume of gas which found its way into an upper room, where the infant inhaled it. The testimony shows that the mother of the child knew that the men were at work in the cellar, and was herself almost overcome by the gas. In attempting to save herself from being entirely overcome she did not close the doors. Held, that the question of the defendant’s negligence and the mother’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 11, 1906.
    Appeal, No. 25, Jan. T., 1906, by defendant, from judgment of O. P. Lackawanna Co., Sept. T., 1908, No. 333, on verdict for plaintiff in case of P. F. Flaherty and Jennie Flaherty v. Scranton Gas and Water Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for death of an infant. Before Newcomb, J.
    At the trial it appeared that the child’s death was alleged to be due to the inhalation of illuminating gas. On February 4, 1903, workmen of the defendant went to the plaintiff’s house to make some repair in the gas service, and while so engaged permitted the escape of a volume of gas. The gas found its way into an upper room where the infant inhaled it. It appeared that the mother of the child had knowledge of the presence of the men in the cellar, but that she herself was almost overcome by the gas, and in trying to save herself did not close the doors. It was alleged that if she had done so the child might have been saved.

      March 12, 1906:
    1. There is not sufficient evidence that there was negligence on the part of the defendant, and the verdict must be for the defendant. Answer : Refused. [1]
    2. Plaintiffs were negligent in not closing the doors between cellar and child’s bedroom and thus protecting the child from • any danger from escaping gas. Answer: Refused. [2]
    8. There is no evidence that the work of taking the water from the pipes was not done in a proper and workmanlike manner. Answer : Refused. [3].
    The court charged in part as follows :
    [It is for you to determine whether the mother was guilty of what the law calls contributory negligence. The presumption of the law is that she exercised due care according to the circumstances, but that presumption may be overcome by the evidence.] [4]
    Verdict and judgment for plaintiff for $564. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      I H. Burns, for appellant,
    cited: Philadelphia City Passenger Ry. Co. v. Henrice, 92 Pa. 431; McAleer v. McMurray, 58 Pa. 126; Oil Co. v. Torpedo Co., 190 Pa. 350; Railroad Co. v. Latshaw, 93 Pa. 449; Stearns v. Ontario Spinning Co., 184 Pa. 519; Pennsylvania R. R. Co. v. Fries, 87 Pa. 234; Johnson v. Reading City Passenger Ry. Co., 160 Pa. 647; Smith v. Ry., 92 Pa. 450; McCool v. Lucas Coal Co., 150 Pa. 638; Sopherstein v. Bertels, 178 Pa. 401; Baker v. Gas Co., 157 Pa. 593; Lewin v. Pauli, 19 Pa. Superior Ct. 447.

      Joseph O’Brien, for appellees,
    cited: Alexander v. Nanticoke Light Co., 209 Pa. 571; Heh v. Gas Co., 201 Pa. 443; Devlin v. Beacon Light Co., 198 Pa. 583; Kebler v. Phila., 105 Pa. 45; Ottersbach v. Phila., 161 Pa. 111; Shafer v. Lacock, 168 Pa. 497; Plonk v. Jessop, 178 Pa. 71; Arnold v. Life Ins. Co., 22 Pa. Superior Ct. 575.
   Opinion by

Head, J.,

If there was sufficient evidence to submit to a jury tending to prove that Cyril Flaherty, the infant son of the plaintiff’s came to his death as the result of an inhalation of illuminating gas, the first serious contention of the appellant is without merit.

Human life is so highly organized and the exact cause of death so often obscured by complicated and varying conditions that even the penetrating and trained eye of the intelligent physician cannot always locate such cause with that precise certainty so much to be desired. But in the judicial investigation of even such a tremendously important question the law demands not absolute certainty. It must act, if it act at all, on those reasonable inferences and probabilities which the intelligence and experience of specially fitted men enable them to draw from the external signs and symptoms of the hidden trouble within. In this case, two educated reputable physicians, each of long practice and high standing in the community, each of whom saw and carefully examined the child, one at the beginning, the other near the fatal termination of its sickness, and each of whom was apprised of the conditions under which the sickness began, take the witness stand and give it as their deliberate opinion and judgment that the child died from the effects of an inhalation of gas. Upon what principle, supported by either reason or authority, is such testimony in such a case to be rejected or ignored ? It is true that neither of these physicians had ever before treated or especially observed a case of this exact character. But their entire education and training were for the very purpose of enabling them to deal with the new forms of disease or the ever changing conditions incident to familiar forms that constantly threaten humanity.

If no physician is competent to form a sound judgment except where present symptoms and conditions are precisely within the range of his own experience, it is hard to see how he eouid ever qualify himself to begin the practice of his high profession. We can discover no just reason for holding and no authority is cited that impels us to hold that any error was committed in submitting such testimony to the jury, and the first assignment of error is overruled.

Did the testimony of Mrs. Flaherty, one of the plaintiffs, disclose such a clear case of contributory negligence on her own part that the court should have, for this reason, withdrawn the case from the jury and directed a verdict for the defendant ? We think not. Had she detected the presence of escaping gas in her house when there was no assignable cause for it and no reason to expect it, ordinary prudence and care might have required her to take some steps to locate the dangerous leak or protect herself and children from its harmful effects until it could be located and remedied by others. She knew, however, that the employees of defendant were then in the cellar for the purpose of making some repairs in the gas service. She had a right to assume they possessed the skill and would exercise the care necessary to control. the gas with which they were dealing. She was not reasonably obliged to anticipate that the gas, which was perhaps necessarily liberated in the performance, of the work to be done, would be allowed to reach a volume dangerous to life or health. When she realized, by being affected herself to the point of sickness, that the volume of gas had assumed dangerous proportions, she was in the situation of one suddenly placed, without fault on her part, in a position of danger and who could not, therefore, in her effort to extricate herself, be held to the use of the best judgment: Cannon v. Traction Co., 194 Pa. 159.

In seeking first to save herself from being entirely overcome by the gas rather than risking that result in an effort to stop or check the flow we cannot say, as matter of law, that the mother was guilty of contributory negligence. On this subject we regard the charge of the court as a fair presentation of the law that ought to control the action of the jury. Even if the single extract from the charge which constitutes the fourth assignment were the just subject of criticism, which we do not concede, the entire charge, taken as a whole, cannot be successfully assailed on the ground that it gave the jury any erroneous idea of the legal principles involved.

As to the proper method of doing the work undertaken by defendant the testimony is again conflicting and contradictory, but both sides agree that if carefully done, according to either of the methods respectively advocated by them, no escape of gas of any consequence would have resulted. If, then, as the jury have found to be the fact, there was an escape of gas dangerous to life and health, such a result could only have happened by the carelessness of those engaged in doing the work.

With the conflict in the evidence or the ascertaining of the side to which the true weight of it inclined, we have nothing to do. But all these matters having been properly submitted to the jury we are unable to say that their verdict is without a substantial foundation in the testimony.

Judgment affirmed.


text:
    Kay, Appellant, v. Gray.

      Bes adjudicada — Mortgage—Validity of mortgage.

    A decree of common pleas in an equity suit affirmed by the Supreme Court to the effect that a mortgage is invalid, and no lien on the land described in the instrument, is conclusive in a subsequent scire facias on the mortgage, if it appears that the mortgagee was a defendant in the equity suit, and filed an answer in which he asserted the validity of the mortgage.
    In general the binding effect of a former adjudication depends upon the identity of the rights involved, not on the evidence or the arguments presented.
    Argued Jan. 11, 1906.
    Appeal, No. 30, Jan. T., 1906, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1903, No. 137, for defendant non obstante veredicto in case of Thomas W. Kay v. Angus C. Gray et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head, and Beaver,, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Edwards, P. J.
    See Cameron v. Gray, 202 Pa. 566, and Kay v. Gray, 24 Pa. Superior Ct. 536.
    At the trial the following offer was made:
    By Judge Vosbttrg: The counsel for the plaintiff offers to prove by Emma Gray, Alderman Baker and by other witnesses, that Angus Cameron, the grantor in the deed to Angus C. Gray, which has been offered in evidence, was living in September, 1899, in the city of Carbondale, in the home of Mrs. Scurry; that he there executed and acknowledged before Alderman Baker the deed to Angus C. Gray which has been offered in evidence here, and that he took no steps to secure it by placing it in any safe deposit vault or safe, but that he left it in a satchel in a closet off the sick room where he then lay, and that this was the only precaution he took in order to preserve the same from being taken and recorded, and that several people, including domestics, had access to the house.
    This for the purpose of showing that Angus Cameron was negligent in the care and custody of the deed after having executed and acknowledged the same, and that he did not take proper steps and precautions or such steps and precautions as a man of ordinary prudence would have taken, to prevent the delivery of the deed or its passing into the hands of any person without his consent. We further propose to follow this by showing by W. W. Baylor, a member of this bar, that at the request of Thomas W. Kay, the plaintiff, he examined the title to property described in the mortgage, and that he found the deed from Angus Cameron to Angus C. Gray upon the record; that he found no incumbrance; that he found the title to be perfect; that he so reported to Dr. Kay, the plaintiff in this case, and that Dr. Kay thereupon paid out $1,000 and took the mortgage in suit, and recorded it. This for the purpose of showing that there was no negligence upon the part of the plaintiff, but that he is a bona fide mortgagee for value without notice of any equities or any defects in the delivery of the deed.
    Mr. Daviss: We object to this evidence as incompetent and immaterial.
    Mr. Lathrope: We further object to the offer on the ground that the plaintiff has had his day in court, and that the matter is res adjudicata.
    The Court: I will sustain the objection.
    Exception noted for plaintiff at whose request a bill is sealed. [3]
    Verdict for plaintiff for $1,250, subject to question of law reserved.
    On a rule for judgment for defendant non obstante veredicto, Edwards, P. J., filed the following opinion:
    The jury in this case found a verdict in favor of the plaintiff for the sum of $1,258, subject to a question of law reserved by the court. The reservation was in the following form:
    “ The point reserved relates to the effect of the decree in equity dated August 6, 1901, entered in No. 5, January Term, 1900. If the court be of opinion that said decree is conclusive as to the validity or invalidity of the mortgage offered in evidence in this case, then judgment to be entered for the defendant, notwithstanding the verdict; if the court holds otherwise as to the effect of said decree, the verdict is to stand.”
    We are of the opinion that the reservation is specific enough to cover the legal question involved in this case. The only criticism we make as to the form is that the word “ validity ” might have well been left out; but this is a mere technicality. The criticism does not reflect upon the counsel in the case, because the point was drawn by the court itself.
    The facts involved in the case are now before this court for the third time. They have also been before the Supreme Court once and before the Superior Court once. We do not mean to say that all the facts have been before the various courts in each case; nevertheless the substance of the contention between the parties has been considered, in some form or another, each time.
    The full history of the case in its first phase is to be found in Cameron v. Gray, 202 Pa. 566. The story is briefly as follows : Angus Cameron, ninety-two years old, confined to his bed in his last sickness, executed a deed in favor of his grandson, Angus C. Gray, for a property worth about $4,000. The old man kept the deed with other papers in a small satchel in a closet near his bed. At no time did he give instructions or directions to anybody to deliver the deed to the grantee or to anyone else for him. The deed was signed, acknowledged, placed in the satchel, and was within the sole control of the grantor to the day of his death. The grantor died at 3 A. M. September 29,1899. Between this hour and noon of the same day the deeds, old and new, were taken from the satchel by Mrs. Gray, the mother of the grantee, and handed to her son. The deed was then stamped and in six days was placed on record.' On the day the deed was recorded the grantee executed a mortgage in favor of Thomas W. Kay pledging the land described in the deed as security for a loan of $1,000. In November, 1899, the heirs of Angus Cameron instituted a suit in equity against Angus C. Gray, the grantee in the deed, and Thomas W. Kay, the mortgagee named in the mortgage. An answer was filed on behalf of Gray and Kay. The case came on for a final hearing, and it was decreed that the deed was void for the want of delivery and that the mortgage was invalid and not a lien upon the land therein described. The case was then appealed to the Supreme Court, where the decree was affirmed on the opinion of the court below. The part of the decree referring to the mortgage is in the following words:
    “ And that the mortgage for $1,000 executed by said defendant, Angus C. Gray, in favor of Thomas W. Kay, the other defendant, dated October 5, 1899, and recorded on the same day, is not a valid lien or incumbrance upon the land therein described, being the same land described above.”
    The next step in the litigation between the parties is the present scire facias sur mortgage. Thomas W. Kay is plaintiff, and Angus C. Gray and the heirs of Angus Cameron, are the defendants. An affidavit of defense was interposed by the Cameron heirs, to which the plaintiff filed exceptions and asked for judgment. We refused judgment, whereupon the plaintiff took an appeal to the Superior Court. One of the defenses set forth in the affidavit is the defense relied upon now to prevent the plaintiff from recovering judgment in the trial of the scire facias. We refer particularly to the adjudication in the equity case. The Superior Court in Kay v. Gray, 24 Pa. Superior Ct. 536, says on this branch of the case:
    “ But the court was warranted in refusing to enter judgment upon another ground. The appellees aver that in a suit in equity between them as plaintiffs and Kay and Gray as defendants, in which the validity of this mortgage, as well as of the Gray deed, was in issue, the court decreed, first, that the Gray deed was null and void for want of delivery and ‘ that the same be and is hereby set aside; ’ second, that Gray reconvey in fee simple the land described in the deed and mortgage; and, third, ‘ that the mortgage for $1,000 executed by said defendant, Angus C. Gray,.in favor of Thomas W. Kay, the other defendant, dated October 5, 1899, and recorded on the same day, is not a valid lien or incumbrance upon the land therein described, being the same land described above; ’ which decree having been appealed from by the defendants in that suit was affirmed by the Supreme Court in the following terms :
    “ ‘ The decree in this case is affirmed on the opinion of Judge Edwabds.’ The case is reported under the title Cameron v. Gray, in 202 Pa. 566. So far as we have been able to discover there is no ground whatever for the contention that the decision of the Supreme Court does not apply to that part of the decree relating to the validity of the mortgage. The decree was affirmed as an entirety, and as the case is now presented the question of the validity of the- mortgage must be regarded as res judicata.”
    One fact that appears clear in the record of the present case is, that Thomas W. Kay, the plaintiff mortgagee, has had his day in court. His rights under the mortgage in question have been adjudicated finally. He was joined as defendant in the equity case ; an answer was filed in his behalf ; he was a party to the issue and to all the proceedings; the validity of the mortgage was included in the issue, and the decree declared his mortgage was not a valid lien on the property described in the deed and mortgage. And we would have no hesitation in ending- the discussion of this case here and now were it not for a line of cases relied upon by the plaintiff’s counsel which decide that it is no defense to a mortgage that the mortgagor had no mortgageable interest in, or title to, the land.
    In Penna. Co. v. Beaumont, 190 Pa. 101, the court says:
    “ It has never been supposed that the right to foreclose an overdue mortgage in any way depends upon the goodness of the mortgagor’s title to the premises embraced in the mortgage.”
    There are several other cases to the same effect. We have no quarrel with this line of decisions. The doctrine laid down in them is well established, and the plaintiff’s case would come under this principle were it not for the important fact that it has already been decided by a court of competent jurisdiction that the plaintiff has no valid mortgage and, therefore, has no lien upon the land which can be enforced by scire facias, or in any other way. The mortgage is absolutely void. The deed from Cameron to Gray, as was said in another case, “ was a mere nullity, a blank sheet of paper, conferring no title on the original grantee, or on an innocent purchaser from him.” The mortgage from Gray to Kay is no better. In view of this statement, must the defendants sit still in the scire facias proceedings because it happens that the' mortgage was properly esecuted and is overdue, although it has been declared not to be alien upon the land embraced in it? Must they wait until the property is sold at sheriff’s sale and until the purchaser thereat brings an ejectment suit ? We think not. We are of the opinion that the plaintiff is precluded by the decree in the equity suit from proceeding to judgment upon his scire facias.
    March 12, 1906:
    Now, August 7, 1905, for the reasons above stated, we enter judgment in favor of the defendant upon the point reserved notwithstanding the verdict.

      Errors assigned were (1, 2) in entering judgment for defendant on the question of law reserved; (3) ruling on evidence, quoting the bill of exceptions.

      A. A. Vosburg, of Vosburg & Dawson, for appellant.

      T. J. Davies, for appellee.
   Per Curiam,

In general, the binding effect of a former adjudication depends upon the identity of the rights involved, not on the evidence or on the arguments presented: Myers v. Kingston Coal Co., 126 Pa. 582. Therefore it needs no argument to show that the admission of the offer of evidence recited in the third assignment of error would in no way have helped the plaintiff. No reason has been presented for holding that the decree of the common pleas in the equity suit, affirmed by the Supreme Court on appeal, is not conclusive in the present action that was not presented when the case was here upon appeal from refusal of judgment for want of a sufficient affidavit of defense, and further consideration has not led to a change of our views upon the' question. We held then, that the question of the validity of the mortgage must be regarded as res judicata ; there being no change in the facts pertinent to the question of res judicata, the learned judge below could not have done otherwise than enter judgment for the defendant on the point reserved. His opinion contains a concise and lucid statement of all that is necessary to a correct understanding of the point for decision, and all that need be said in vindication of the judgment.

Judgment affirmed.