author: Beaver, J.,

text:
    Herron v. Duquesne Borough, Appellant
    October 7, 1907:
    (No. 1).

      Negligence — Waters—Leakage from water main — Borough.
    In an action against a borough, to recover damages for injuries to real estate, alleged to have been caused from the leaking of a water main, the plaintiff cannot recover merely by showing that the borough had constructed and maintained its own waterworks and pipes and that the injury was caused by a leakage from one of the borough pipes. He must go further and show that the alleged injuries resulted from either a faulty or negligent construction of the defendant’s water pipe, or, the same being properly constructed, that it had become out of repair and was and had been leaking so that the borough was negligent in not repairing the pipe after notice, actual or constructive, of its condition, or that the borough was guilty in failing to exercise such proper care, caution and diligence as was reasonable and prudent under the circumstances.
    Argued April 10, 1907.
    Appeal, No. 172, April T., 1907, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 74, on verdict for plaintiff in case of Joseph A. Herron et al. v. Duquesne Borough.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages to property caused by leakage of a water main. Before Shaeer, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $1,026. Defendant appealed.

      Errors assigned were (1, 2) the instructions quoted in the opinion of the Superior Court.

      Charles B. Payne, for appellant.

      John Cf. Frazer, with him Reed, Smith, Shaw $ Beal, for appellee.
   Opinion by

Beaver, J.,

The claim of the plaintiffs in the court below was for damages, resulting to a dwelling house, caused by negligence in the construction and maintenance of a water pipe belonging to the defendant municipality, laid along Patterson avenue above the dwelling, the lot upon which the same was erected being upon a hillside which inclined at a sharp angle to Center street, 120 feet below.

The pipe referred to was a part of the general water system owned by the municipality, through which the inhabitants of the borough were supplied with water.

The assignments of error relate to the refusal of the court to affirm two several points for charge, the first of which was :

“ If the jury believe, from the evidence, that the land on which the plaintiffs’ house stood and on which Patterson avenue is laid out, all slipped down the hill together, thus causing damage to the plaintiffs’ house, and also moving the borough’s water line and causing it to leak, the verdict should be for the defendant.”

Although the reasons for the refusal of the court to affirm this point are not distinctly stated, they become very clearly apparent from the general charge, in which the trial judge said: “ The plaintiffs’ claim is that the negligence of the borough consisted in allowing this break to continue after it was known, and not repairing at once. That is the only ground on which the plaintiffs can recover here. If this damage was all done suddenly, at once, as soon as this break occurred, then the plaintiffs could not recover anything, because there is no evidence that the borough was liable for it; but, as I understand it, the plaintiffs’ claim is that the continued running out of this water from the main for two or three months undermined these houses and that, while that was going on and before the injury was done, the borough had notice of the break. If that is true, that the borough had notice of the break and allowed it to run after they knew it was broken, and the break caused the damage, then the borough would be liable for the damage.” This is a practical affirmance of the point, -with the qualification that if, after the break, the borough negligently allowed the water to escape and thereby injured the plaintiffs’ property, it would be liable.

This question was fully considered by us in Morgan v. Duquesne Borough, 29 Pa. Superior Ct. 100, in which it was held, as per syllabus, that, “ In an action against a borough to recover damages for injuries to real estate, alleged to have been caused from the leaking of a water main, the plaintiff cannot recover merely by showing that the borough had constructed and maintained its own water works and pipes and that the injury was caused by a leakage from one of the borough pipes. He must go further and show that the alleged injuries resulted from either a faulty or negligent construction of the defendant’s water pipe, or, the same being properly constructed, that it had become out of repair and was and had been leaking so that the borough was negligent in not repairing the pipe after notice, actual or constructive, of its condition, or that the borough was guilty in failing to exercise such proper care, caution and diligence as was reasonable and prudent under the circumstances.” In that case, the judgment of the court below was reversed upon grounds which do not in any way affect the principle here involved, and the ruling of the court below was in accordance with that opinion. See also McHale v. Throop Borough, 13 Pa. Superior Ct. 394, and the cases there cited.

This is practically the entire case, and, inasmuch as there was evidence of notice to the borough authorities that the leak had occurred and was doing damage to the plaintiffs’ property and that no repairs were made to the pipes for a considerable time, a question of fact was necessarily raised which carried the case to the jury. The court was undoubtedly right, therefore, in refusing the third point for charge, embraced in tbe second assignment of error — “ That, under all the pleadings and evidence in the case, the verdict should be for the defendant.” The case was clearly for the jury and, in submitting it, the question of the negligence of the defendant was held by the court to the narrowest possible limits.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Herron v. Duquesne Borough
    (No. 2).
    October 7, 1907:
   Opinion by

Beaver, J.,

The facts in this case are similar to those in No. 172 of April Term, 1907, between the same parties, in which an opinion has this day been filed, ante, p. 231. The cases were tried together and two separate’ verdicts rendered. The cases were also argued here together, the assignments of error being the same.

For the reasons stated in the previous case, the judgment in this one is affirmed.


author: Morrison, J.,

text:
    Pittsburg, Appellant, v. Consolidated Gas Company.

      Taxation — Local taxation — Real estate — Gas company.

    A gas company is not taxable by a city for any portion of twelve acres of real estate owned by it, where it appears that nearly half the acreage is occupied by the gas plant itself, and the remainder is used for dumping cinders and other refuse from the works, for storage of coal, pipe, etc., necessary for the business of the .company, for emergencies, and that the company contemplated using such portion to enlarge its plant for its increasing business.
    Argued April 10, 1907.
    Appeal, No. 23, April T., 1907, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, No. 342, on verdict for defendant in case of City of Pittsburg v. Consolidated Gas Company.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur municipal lien for taxes. Before Brown, J.
    The court charged as follows:
    [This property held by the company was a property that they had the right to put their buildings upon, which means tanks, retorts and everything that goes to the manufacture of gas. It had, in addition to that, the right to use the property for everything that helped to produce the gas; storage of coal, storage of pipes for the distribution of gas. They had the right to use it if you believe they used it in good faith, for dumping purposes, because the refuse from a large plant accumulates rapidly. As the testimony shows, it runs into many tons daily or into several carloads daily. If that had to be transported by this company over a large distance for dumping purposes, the expense perhaps would be very great, and that expense the company would have to get back in some way out of its general business in order to get a fair revenue. It would mean, perhaps, an increase in the price of gas. It may be that gas can be reduced in price, but eveiy additional bit of cost, as, for instance, the cost of transporting the dumping material over a long distance rather than dumping on a piece of ground adjoining, and convenient and cheap for that purpose— the difference would run very rapidly into large amounts of money.] [1]
    [If the weight of the evidence satisfies you that this company purchased this property in good faith for its corporate purposes, the manufacture and distribution of gas, and incidentally, in connection with that purpose, used it for the storage of coal, the storage of pipes and largely used it for dumping purposes in 1901 and preceding that year and all the way down to the present time and will continue to use it, as I believe the testimony shows, for dumping purposes, until filled, then we think, gentlemen, that the verdict should be for the defendant, the gas company.] [2]
    [The company, when buying property, does not have to purchase at the time it is about to build its plant just so much ground as is necessary at that time. It has a right to anticipate the future; that, as the city grows, as the demand for gas grows, a larger plant will be necessary not only for building, but for every purpose that helps to bring about the production and distribution of gas at the lowest possible rate, perhaps, consistent with a fair profit.] [3]
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned were (1-3) above instructions, quoting them.

      A. M. Thompson, with him W. B. Rodgers, for appellant.—
    Property of quasi public corporations, in order to be exempt from taxation, must be necessary and indispensable to the exercise of the corporate franchises, and land which is merely convenient or desirable for the exercise of the franchises is not exempt: Railroad Co. v. Berks County, 6 Pa. 70 ; West Chester Gas Co. v. Chester County, 30 Pa. 232; Roaring Creek Water Co. v. Girton, 142 Pa. 92; County of Erie v. Erie & Western Transportation Co., 87 Pa. 434; Pennsylvania, etc., Canal & R. R. Co. v. Vandyke, 137 Pa. 249; Shamokin Valley R. R. Co. v. Livermore, 47 Pa. 465 ; Pittsburg, etc., Bridge Co. v. Com., 4 Sadler, 153.
    October 7, 1907:
    It is the present existing use of the property of a quasi public corporation that entitles to an exemption, not its prospective use, and the defendant’s claim that this property is held for possible future extensions, establishes the fact that it is taxable now: Pittsburg v. Presbyterian Church, 20 Pa. Superior Ct. 362; Mullen v. Commissioners of Erie County, 85 Pa. 288 ; Philadelphia v. Barber, 160 Pa. 123 ; Moore v. Taylor, 147 Pa. 481.

      Samuel Me Clay, with him Reed, Smith, Shaw Beal, for appellee.
    How much land is essential for corporate purposes must be determined by the corporation, and, in the absence of evidence of bad faith or abuse of its powers, there is a conclusive presumption that it has acquired and holds no more property than is absolutely necessary: People’s Pass. Ry. Co. v. Taylor, 22 Pa. Superior Ct. 156; Philadelphia v. Ward, 174 Pa. 45; Pennsylvania R. R. Co.’s App., 3 Pa. C. C. Rep. 162; Lodge v. Philadelphia, etc., R. R., 8 Phila. 345 ; Penna., etc., Canal & R. R. Co. v. Vandyke, 157 Pa. 249; Western New York, etc., R. R. Co. v. Venango County, 183 Pa. 618.
   Opinion by

Morrison, J.,

This was a suit of the city of Pittsburg to collect from the Consolidated Gas Company local taxes assessed on land for the year 1901. It is conceded that the gas company, appellee, was incorporated under an an act of assembly of this commonwealth, entitled, “ An act to incorporate the Consolidated Gas Company,” approved May 19,1871, P.L. (1872) 1309. This act provided that the company “ shall be organized, managed and governed as provided by the act regulating gas and water companies, approved the 11th day of March, Anno Domini, one thousand eight hundred and fifty-seven, and subject to all the restrictions and provisions, together with the immunities contained in said act.” The powers conferred upon gas companies by the Act of April 29, 1871, P. L. 73, are identical with those contained in the act of 1857.

The appellant concedes that the gas company is entitled to hold so much real estate, exempt from local taxes, as is reasonably -necessary and indispensable for the manufacture and distribution of gas, but contends that the 6.75 acres of land, the assessment of which gives rise to the present suit, is subject to local taxation.

In 1901, the gas company owned a tract of land in the fourteenth ward of the city of Pittsburg, containing twelve acres, and extending from Second avenue to the Monongahela river; upon which land were located its works, consisting of retort, purifying, scrubbing, condensing, meter and cold storage houses for the manufacture, storage and distribution of artificial gas to the public in the cities of Pittsburg and Allegheny, comprising a population of over 500,000 people. The entire property was used exclusively by the appellee,-which derived neither directly nor indirectly any revenue therefrom, other than from the sale of gas to the public. This twelve acre lot of land was purchased by the appellee as one property for its corporate purposes. Of the twelve acres, the assessor of the city of Pittsburg exempted 5.25 acrps, and assessed 6.75 acres. The land so assessed was used by the appellee for the deposit of its cinders and other refuse matter taken from the furnaces and other places used for the manufacture of gas. The grade of this property was below the level of Second avenue, and the appellee began depositing the said cinders at the river and continued the filling toward Second avenue, and, after filling, the high ground was used for the storage of coal, pipe, etc., necessary in its business, and the appellee claimed to reserve this land for the exigencies of its business and the construction of additional plant when required by the needs of the public. The cinder deposited amounted to several car loads daily, and it was deemed necessary that the land be filled with cinder or other substance before additions or extensions could be made to the plant.

The appellee defended on the ground that the land assessed was part of its corporate property, being used in the manufacture of artificial gas, and that it was necessary and essential to the carrying on of the business of manufacturing and supplying artificial gas for illuminating purposes; and further, that the land was necessary for the purposes of the appellee in emergencies and in the event of enlarging and extending its plant, made necessary by increased business.

The court below submitted the case to the jury to determine whether this land was used in good faith by the appellee for the manufacturing and supplying of artificial ga's to the public, and whether it was an essential part of appellee’s plant. The jury found these questions in favor of the appellee.

The learned counsel for the appellant contend that the appellee’s plant did not occupy the assessed land and that it was not a necessary part of the plant, but concede that it might be convenient. It is contended that the court erred in submitting to the jury the question of whether the land was used in good faith by the appellee as above stated. We do not think this was error and we are disposed to attach some importance to the finding of the jury upon this question, and the approval thereof by the court below, evidenced by the judgment in the case. We think the evidence clearly shows that the whole twelve acres were purchased for the appellee’s corporate purposes, and whether there was more laud than was needed for the plant and that some of it ought to be subject to local taxation, seems to be a question of fact.

In West Chester Gas Co. v. The County of Chester, 80 Pa. 232, the Supreme Court held that the works of an incorporated gas company were not taxable as real estate. But dwelling houses erected by the company for the residence and accommodation of their workmen, are liable to taxation. The court said: “ The gas works are clearly exempt; but the dwelling houses do not appear necessary to the performance of the company’s proper work. On the other hand, they are stated to have been erected for the accommodation of their workmen. This is convenience, not necessity.” Giving the. doctrine of this case its full weight does not enable us to say, as matter of law, that the present appellee could not purchase twelve acres of land and devote the whole of it to the construction and operation of its gas plant, storage, etc., so that the same would be exempt from local taxes as real estate for county purposes.

In Coatesville Gas Co. v. County of Chester, 97 Pa. 476, Mr. Justice Merche, (p. 481) said: “ The principle which appears to he recognized is that the public works of a corporation, used as such with their necessary appurtenances, shall be exempt from taxation as land, but be subject to it in another form, and that a gas company so far partakes of the nature of a corporation for public purposes as to be subject to the same rule : Northampton County v. Lehigh Coal and Nav. Co., 75 Pa. 461; Same v. Easton Gas Co., not reported.” That case was an attempt to assess the lot on which the company’s plant was located as land, like the present case, but it does not appear how much land was embraced in the contention. It does, however, appear that the land and improvements were used only for the manufacturing and supplying gas according to the defendant’s corporate powers. So in the present case it clearly appears that the land assessed was not used in 1901 for any other purpose, except in connection with the appellee’s gas plant.

In Schuylkill County v. Citizens’ Gas Co., 148 Pa. 162, there was a contest as to taxation of the company’s land for county purposes. The court below said: “ A public corporation is one .which cannot carry out the purposes of its organization without chartered rights from the commonwealth. Railroads, canals and gas companies must have the right of eminent domain in order to perform their functions. Their property, which is indispensable to their chartered rights, is represented by their capital stock, and as such is taxed specially by the legislature, and the lavf will not subject it to duplicate taxation by mere inference. It must expressly be made subject by statute.” The case was decided as to the land and gas works in favor of the gas company, and on appeal by the county the judgment was affirmed.

In Pittsburg’s Appeal, 123 Pa. 374, it was held that the gas pipes of the defendant company, laid in the streets of the city of Pittsburg, through which natural gas is distributed to customers, are not subject to taxation for city purposes as land or capital stock.

In St. Mary's Gas Co. v. Elk County et al., 168 Pa. 401,.it ■ was held that the property of a. gas company, consisting of 684 acres, held for its corporate purposes, and necessary to the exercise of its corporate rights as a public corporation, was not subject to local taxation.

In Southern Electric Light & Power Co. v. The City of Phila. et al., 191 Pa. 170, it was held: “The circumstances that a portion of the property of the plaintiff is reserved for use for its manufacturing purposes in case of emergency, or to meet the demands of increasing business, does not alter or change its character as being part of the premises used, or intended to be used, for its essential objects. It is still a part of the property which in its entirety is exempt from local taxation as real estate.” In that case it was distinctly averred by the respondent that a very small part of complainants’ real estate, if any, would be needed for the purpose of supplying electricity. But we understand that case to distinctly hold that the company could hold lands for a prospective increase of business, without such land being subject tc local taxation.

In the present case the appellee makes use of all of the twelve acres of land in connection with the operation of its plant, and it further avers an expectation of the necessity of using the land for an enlargement of the plant.

In Railroad Co. v. Venango County, 183 Pa. 618, it is held that the machine shops belonging to a railroad company and used exclusively for repairs in its own business, are exempt from taxation for local purposes, but if used for construction they are subject to local taxation. In that case Mr. Justice Williams said: “The business a corporation may lawfully do must be defined by its charter. If it is to supply a municipality with water or gas, its implied or incidental powers must be such as are reasonably necessary to the proper performance of its functions as a water or a gas company. It cannot manufacture pipe because it may need pipe in the distribution of water or of gas. It cannot engage in the manufacture of plumbers’ supplies because it might be profitable to be able to supply its customers with such goods. Its business is one; the supply of water or gas, as it may be, to its customers, and to this it must devote its attention and confine its operations.”

In the present case it is not pretended that the appellee is using the land in question, or deriving any benefit from it in any manner whatever, except in its corporate business of manufacturing and supplying gas.

We have examined with some care the argument, and the cases cited therein, by the learned counsel for the appellant, but we are not convinced, on the facts before us, that the land in question was taxable as land for local purposes.

We do not think the cases cited in regard to the exemption of property used for church or charitable purposes are closely in .point. The constitution provides that all taxes shall be uniform upon the same class of subjects, etc., but the general assembly may by general laws exempt from taxation public property used for public purposes, actual places of religious worship, places of burial not used or held for private or corporate profit, and institutions of purely public charity.

It is not under the constitutional provision that land used and held by corporations is exempt from local taxation, but because such land is represented by the capital stock and is thus taxed, and cannot be again taxed in the absence of legislation expressly authorizing such taxation.

The three assignments of error are excerpts from the charge of the court below, and, upon the facts before the court, we do not consider the charge, taken as a whole, erroneous. While it must be conceded that the question raised by this appeal is close to the border line, we are inclined to hold, with the court below, that there was not enough shown to subject the land in question, to local taxation.

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

Rice, P. J., dissents.


author: Orlady, J.,

text:
    Bleadingheiser v. Crumrine, Appellant.

      Decedents’ estates — Services—Nursing—Payment—Province of court and jury.

    In an action by a professional nurse against an executor to recover for nursing the testator, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where it appears that neither the time of service nor the rate of payment is disputed, but the evidence is conflicting as to whether the proceeds of certain checks given by the testator to the plaintiff were applicable to the payment of the latter for her services, or whether the plaintiff had expended the proceeds of the checks in the purchase of necessary medicines, provisions and supplies for the testator and his household, at the testator's request, or with his knowledge and assent.

      Appeals — Assignments of error — Admission of testimony — Failure to print testimony in connection with assignment.

    An assignment of error to the admission of testimony is defective which fails to set forth the evidence admitted.
    Argued April 15, 1907.
    Appeal, No. 175, April T., 1907, by defendant, from judgment of C. P. Washington Co., Feb. T., 1906, No. 97, on verdict for plaintiff in case of Clara Bleadingheiser v. E. E. Crumine, Executor of J. W. Nesbit, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for services rendered as nurse to defendant’s testator. Before Taylor, J.
    At the trial the defendant claimed that the services had been paid for by checks given by the testator to defendant. Defendant, however, claimed that, with the exception of $100, she had spent the proceeds for medicines, groceries and provisions for the decedent and his household, and that she had done so at his request and with his knowledge.
    The court charged in part as follows :
    [Does the evidence satisfy you clearly that this plaintiff brought the money that she realized on these checks that were furnished to her by John W. Nesbit and that she had cashed by the Washington Trust Company, was taken by her and turned into the family of John W. Nesbit, or into that household, and that these purchases that were made at the stores admittedly by her were made with money that he furnished her and that she brought back to him, if she did, or was it money that was kept in the house there, as the defendant’s witnesses say, for those needs and purposes, and that in no case did Miss Bleadingheiser ever buy anything for the deceased or his household out of the money from these checks or her own money, except in one or two instances of a very'- small amount, in the case of the mattress, twenty-five cents, where she was to repay that, and were the checks given alone for salary ? Did she at any time present to the executor a bill she had, in the form and shape that she paid that money out of her own pocket?] [4]
    [And then the plaintiff’s witnesses go upon the witness stand again by way of rebuttal to that and show -by witnesses that the plaintiff, while nursing the deceased, bought and paid for medicines, groceries and other provisions, and took them to the sick man’s home for him, and have argued to you, we admit, those checks were issued to the plaintiff in this suit and that the amounts are correct, less the $10.00, in the $260 which the other side say was for medicine and that $250 of that was for services, but we turned that money back to J. W. Nesbit, that is what was done with the money that the plaintiff realized from these checks which the defendant says were paid to her as wages, except the $100 of a credit, and that is the final claim made by plaintiff’s case and argued to you, and it is for you to say under all the evidence whether such claim is consistent with the claim of the plaintiff as put in originally to the executor and the claim as put in here, wherein the plaintiff sought to show by the testimony of a number of merchants, druggists and storekeepers of this town, the amount of medicines and goods she purchased for deceased and paid for, and argues from that, that the money she received evidenced by these three checks, $125, another for $50.00 and another for $250, was money that she received on these checks and took it back to the Nesbit house and gave it to the sick man, and that it was with that money that is the claim now made by the plaintiff ’s counsel here with regard to these checks in his argument to you, that was used by John W. Nesbit to meet the current expenses of his sickness and the running of the house by his sister and niece which the plaintiff asks you to find from all the evidence in the case was paid out by Nesbit to the nurse with which, from time to time, the nurse bought things for him on these various trips to Washington.] [5]
    Verdict and judgment for plaintiff for $435. Defendant appealed.

      October 7, 1907 :

      Errors assigned were (1, 2) rulings admitting evidence, but not setting forth the evidence in the assignment; (4, 5) above •instructions, quoting them.

      Boyd Crnmrine, with him E. E. Crumrine, for appellant.
    22. W Irwin, of Irwin, Wiley ‡ Morgan, with him I. W. Baum, for appellee.
   Opinion by

Orlady, J.,

The judgment we are asked to review was recovered by the plaintiff in the court below for professional services rendered by her, as a nurse to John W. Nesbit, deceased, during twenty-eight and one-half weeks at the rate of $25.00 per week. The services were performed under a contract made by the plaintiff with the decedent, and neither the time of service nor the rate of payment is disputed. The substantial matter in dispute on the trial was, whether certain checks made by John W. Nesbit to the order of the plaintiff, the proceeds of which were received by her, were to be credited as payments to her account, or whether she had expended the money received from that source in the purchase of necessary medicines, provisions and supplies for the decedent and his household. It was clearly shown that the nurse did make many such purchases, and paid for them in cash, and while the testimony is conflicting, and some of the witnesses show great bias in their statements, there is ample evidence from which the jury could fairly and reasonably conclude that the moneys received by the nurse (independent of the sum of $100 which she credited on her account) were honestly expended by her on his orders, or with his knowledge, for his-benefit. The jury having on sufficient evidence found the facts in her favor ends that branch of the case.

The manner of- its submission by the court, as complained of in the fourth and fifth assignments of error, was none the less fair and adequate in the light of the whole charge. The first and second assignments are so manifestly in violation of rule XYI of this court, that they are not considered, for the reasons repeatedly announced by the Supreme and Superior Courts : Battles v. Sliney, 126 Pa. 460; Gish v. Brown, 171 Pa. 479; Raymond v. Schoonover, 181 Pa. 352; London Assurance Corporation v. Russell, 1 Pa. Superior Ct. 320; Loeweke v. B. & L. Assn., 21 Pa. Superior Ct. 389; Pizzi v. Nardello, 23 Pa. Superior Ct. 535; Piano Mfg. Co. v. Engberry, 30 Pa. Superior Ct. 543.

The judgment is affirmed.


text:
    Dunn v. Farmers’ Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Proof of loss — Waiver—Act of June 27, 1883, P. L. 165.
    Proof of loss served upon the local agent of a fire insurance company more than twenty days after the date of the fire, is not sufficient, and in the absence of waiver or estoppel the insurance company is not bound by such service of proof.
    Mere negotiations between the insured who has not furnished proof of loss, and the insurance company's adjuster, or mere expectation of a settlement without any change of position of the insured to his detriment are not sufficient to establish waiver of proof of loss by the company.
    Argued April 15, 1907.
    Appeal, No. 48, April T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 1,041, on verdict for plaintiff in case of Lydia Dunn to use of Louis Rauh v. The Farmers’ Fire Insurance Company.
    Before Rice, P. J., Hendebson, Mobbison, Oblady, Head and Beaveb, JJ.
    Reversed.
    Assumpsit on a policy of fire insurance. Before Bbown, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for 1714.89. Defendant appealed.

      Error assigned was. in refusing binding instructions for defendant.

      W. K. Jennings, with him I). O. Jennings, for appellant.—
    There was not sufficient evidence of a waiver to submit to a jury: Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. 402; Gould v. Dwelling House Ins. Co., 184 Pa. 570; Nat. Ins. Co. v. Brown, 128 Pa. 886; Diehl v. Adams County Mut. Ins. Co., 58 Pa. 443 ; Pottsville Mut. Fire Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. 137.
    October 7, 1907 :

      L. AT. Porter, with him JE. H. Stowe and S. G. Porter, for appellee.
    The waiver of proof of loss required in a policy may be inferred by any act of the insurer evincing a recognition of liability or a denial of obligations exclusively for other reasons: Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Welsh v. London Assurance Corp., 151 Pa. 607 ; Roe v. Dwelling House Ins. Co., 149 Pa. 94; McGouigle v. Ins. Co., 168 Pa. 1.
   Opinion by

Morrison, J.,

On August 2, 1902, the defendant corporation issued a policy of insurance to plaintiff for $750, on a small stock of goods in her store in the city of Pittsburg. There was another policy for a like amount in another company. On November 9, 1902, a fire occurred in the store, damaging the insured goods to some extent.- The - company received prompt notice of this fire and sent its adjuster who examined the store and goods and estimated the plaintiff’s total loss at $200, but she contended that her damage amounted to about $1,500, and she finally claimed from the defendant $613.66. The trial resulted in a verdict and judgment for plaintiff in the sum of $714.89. At the trial, defendant’s counsel asked for a binding instruction that “ under all the evidence the verdict should be for the defendant.” This point was refused and it gives rise to the first assignment of error.

The plaintiff made no attempt to file proof of loss with the defendant company, as required by the terms of the policy, except an effort to file such proof on January 6, 1903, on the sixtieth day after the fire, about six o’clock in the evening, with B. F. Ripple, the local agent who countersigned the policy. At the trial it was contended that a proper and sufficient proof of loss was then filed with Mr. Ripple, but the evidence was strong and convincing that by an error on the part of the plaintiff’s representative the paper delivered to Mr. Ripple was a blank, containing no information or facts bearing upon the loss. It was simply a blank form, signed by the plaintiff, without date, but purporting to have been sworn to before a notary public on January 6, 1908. The policy contained the following provision: “ If fire occur insured shall give immediate notice of any loss thereby in writing to this company .... and within sixty days after the fire, unless such time is extended in writing by this company; shall render a statement to this company signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of loss thereon; all encumbrances thereof; all other insurance, whether void or not, covering any of said property, and a copy of all the descriptions and schedules in all policies.”

At the trial the learned court instructed the jury, correctly we think, that unless they found that the defendant had waived a strict compliance with the above requirement, the plaintiff could not recover. Whether or not there was sufficient evidence to allow the jury to find that due proof of loss was furnished to Mr. Ripple, on the sixtieth day after the fire, need not now be decided, for the reason that it was not a compliance with the terms of the policy to file proof of loss with the local agent more than twenty days after the fire. It was the duty of the plaintiff to furnish to the company the required information within sixty days after the fire ; this, of course, means to some officer authorized to receive the same. Delivering the proof of loss to the local agent more than twenty days after the date of the fire was not sufficient, and in the absence of waiver, or estoppel, the defendant was not bound by such service of proof:: Act of June 27, 1883, P. L. 165. Under this statute the local agent of the company has no power to waive any of the important provisions of the policy: Kness v. Anchor Fire Insurance Co., 31 Pa. Superior Ct. 521; Hottner v. Aachen and Munich Fire Insurance Co., 31 Pa. Superior Ct. 461. We, therefore, conclude that the learned court was correct in instructing the jury that there could only be a recovery by the plaintiff on the ground of waiver of proof of loss by the defendant. But was the court warranted in submitting that question to the jury ? We think not. A careful reading of the evidence does not convince us that the company waived its right to have furnished, within sixty days, the information called for in the provision of the policy above quoted. Nor does the evidence disclose sufficient to estop the defendant from raising this question.

The effort of Mr. Strobel, the adjuster of the defendant, to ascertain the loss and agree with the plaintiff as to an amount in settlement of her claim, falls far short of sufficient evidence to hold the defendant to a waiver of proofs of loss. In this connection we remark that the learned counsel for the plaintiff did not seem to have confidence in waiver or estoppel because they attempted to make proof of loss on the sixtieth day after the fire. The provision of the policy above quoted bound the plaintiff. It is the contract between the parties, and if the plaintiff has not complied with it, she cannot recover, except by establishing waiver or estoppel. There is not sufficient evidence that the plaintiff was deceived, misled or placed in a different or worse position than the contract left her. Therefore, the defendant is not estopped from defending on the ground that this very important provision of the contract was not complied with on the part of the plaintiff. After twenty days from the date of the fire no effort whatever was made by the plaintiff to furnish the company with written proof of loss within the meaning of the contract in that respect. Under the evidence, this default cannot properly be charged to the defendant.

In Mitchell v. Lycoming Mutual Insurance Co., 51 Pa. 402, Mr. Justice Agnew (p. 409) said: “Good faith is the life-breath of insurance where a heavy risk is taken for a small premium.”

In Gould v. Dwelling House Ins. Co., 134 Pa. 570, Mr. Justice Mitchell (p. 588) said: “ But if without valid reason he fails to comply with the requirements of his policy at all, or to do so within the stipulated time, then the liability of the company is discharged; and mere silence, or investigation, or even negotiation, will not, in the words of Sharswood, J., in Beatty v. Insurance Co., ‘revivify the contract.’ Nothing will do that short of an express agreement, or a change of position by the insured reasonably induced by the acts of the company, and to his disadvantage. Mere disappointment in the expectation of a settlement, even though such expectation be founded on the acts of the company, as in National Insurance Co. v. Brown, 128 Pa. 386, will not be enough.”

In Diehl v. Adams County Mut. Ins. Co., 58 Pa. 443, Thompson, C. J. (p. 552) said: “ The object was to establish a waiver of a breach of conditions. But this never occurs unless intended, or where the act relied on ought in equity to es-top the party from denying it.”

In Pottsville Mut. Fire Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. 137, Mr. Justice Green (p. 140) said: “It is the actual contract of the parties and it binds them and necessarily controls the action of the courts, who have no power to alter the solemn contracts of parties where there is neither fraud, mistake or imposition.”

We sustain the first assignment of error and this makes it unnecessary to consider the second.

Judgment reversed.


text:
    Prudential Trust Company to use v. Hildebrand
    (No. 1).

      Mechanics’ liens — Judgment—Mortgage—Invalid lien — Priority.
    Where the lien of a mortgage is prior in date to a judgment entered upon a scire facias sur mechanic’s lien, but is subsequent to the date at which the work upon the building was commenced, the mortgagee may upon a distribution of the fund raised by the sale of the building, attack the validity of the mechanic’s claim upon which the judgment in the scire facias was obtained. If the court finds for sufficient reasons that the mechanic’s claim was invalid, the mortgage will be entitled to priority over the judgment in the distribution of the fund.
    Appeals— Assignments of error — Exceptions to auditor’s report.

    Assignments of error to rulings on exceptions to an auditor’s report are not in accordance with the rule, where they do not set forth the decree of the court, or the exceptions and the rulings thereon.
    Argued April 16, 1907.
    Appeals, Nos. 123, 130,131, 132, 133 and 134, April T., 1907, by Ella A. Hartón and Harry M. Hartón, Executors of John E. Hartón, deceased, from order of C- P. No. 1, Allegheny Co., Sept. T., 1905, No. 57, on. exceptions to auditor’s report in case of The Prudential Trust Company to use of Michael P. Howley v. W. E. Hildebrand, former owner, with notice to Frank P. Howley, present owner.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beater, JJ.
    Affirmed.
    Exceptions to report of John G. MacConnell, Esq., auditor, appointed to distribute funds raised by sheriff’s sale of real estate.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in the following form:
    1. The court erred in sustaining the objections to appellants’ mechanics’ liens, which denied their right of lien, and in holding the liens invalid.
    2. The court erred in not holding that such right of lien was conclusively established, by the judgments obtained thereon, and that in the absence of fraud or collusion, such judgments could not be impeached collaterally.'
    3. The court erred in not holding that the right of lien being established by the judgments, and the priority of the lien of the judgments over the mortgage having been shown, such judgments were entitled to distribution in preference to the mortgage.
    4. The court erred in not decreeing distribution to the mechanic’s lien judgments.

      W. 3. S. Thomson, with him Frank Thomson and G. G. Brock, for appellants.
    This case is ruled by Nolt v. Crow, 22 Pa. Superior Ct. 113.

      R. B. Petty, with him T. B. Alcorn, for appellee.
    The mortgagee was not a party to the proceedings on the mechanics’ liens, and, therefore, never had an opportunity to contest the liens until the question of distribution arose: Norris’s App., 30 Pa. 122; McCay’s App., 37 Pa. 125; Safe Deposit Co. v. Iron & Steel Co., 176 Pa. 536 ; McAdam v. Bailey, 1 Phila. 297.

      October 7, 1907:
   Opinion by

Beaver, J.,

•The assignments of error in this case are not in accordance with our rule XV, which requires that, “ When the error assigned is to the charge of the court, or to answer to points, or to findings of fact or law, the part of the charge, or the points and answers, or findings referred to, must be quoted totidem verbis in the assignment. ” There is no reference whatever in any of the assignments to the opinion of the court or to its decree. The rulings of the court, to which objection is made, should have been specifically referred to and quoted. Inasmuch, however, as the appellee does not except to the character of the assignments, we disregard their irregularity and will dispose of them on their merits, as the real question involved can be ascertained.

The question raised by the appeal is as to the effect of a judgment in a scire facias upon a mechanic’s lien, as against a mortgagee whose lien is prior to the date of the judgment but subsequent to the date at which the work upon the building was commenced, toward the construction of which the materials for which the lien was filed were delivered.

The court below held the lien filed in this case to be invalid and awarded the money, on a distribution of the funds in the hands of the sheriff, raised by the sale of the property upon which the mortgage was an admitted lien and against which the lien of the appellant was filed, to the mortgagee, less certain other mechanics’ liens which are not here disputed.

The assignments of error, although four in number, raise but a single question, which is thus stated by the appellant“ In the absence of fraud or collusion, can the mortgage creditor be heard to attack the judgments and liens on any ground save those which fix the priority of lien? ”

The court below held that the liens in this, and other cases which follow, were absolutely invalid, the subcontractors who filed them having no right to file a lien. The appellant does not dispute the findings of the court in this respect and does not assign for error the statement of the ground upon which the finding is based. His contention is that, a judgment having been rendered in the scire facias upon the lien, the right to file the lien was thereby established, as against the appellee and all others interested, and that the only ground upon which the appellee could be heard to question the right of the appellant to the money upon his judgment was that of the priority of the lien. It is not necessary, therefore, for us to inquire particularly as to the grounds upon which the court held the lien invalid.

Could the appellee take advantage of the invalidity of the lien, after judgment upon the scire facias ?

This question has been settled in a number of cases. One of the latest is Safe Deposit Co. v. Iron & Steel Co., 176 Pa. 536, in which Mr. Justice Fei/d clearly sets forth the effect of a judgment upon a scire facias, so far as it relates to persons other than those directly interested therein as parties: “ A mechanic’s lien is a claim only, and its averments and dates establish nothing. A judgment obtained upon it is, of course, conclusive against the owner, but he cannot waive the right of creditors to insist that the lien is invalid. As to them it is a judgment from its date only, and not even prima facie evidence of the relation of the lien to the commencement of the work on the ground. In the opinion filed by Shakswood, J., in the district court of Philadelphia and adopted as the opinion of this court, in Norris’s Appeal, 30 Pa. 122, he said: ‘ In a contest between mechanics and others for a fund in court, a judgment obtained by a mechanic on a scire facias is as to other claimants res inter alios acta and not even prima facie evidence. As a judgment it ranks merely from its date. To come in as a lien, it must be proved so as to entitle it to relate to the commencement of the building.’ This case was distinctly recognized and followed in McCay’s Appeal, 37 Pa. 125, and Hahn’s Appeal, 39 Pa. 409. The averments and dates in the lien were not aided by the judgment on the scire facias and they were not in themselves sufficient to sustain the finding that the lien was filed within six months of the completion of the work. ”

It will be observed that this decision recognizes the right of the contesting creditor to inquire not only as to the priority, but to go much deeper and question the very validity of the lien. This being so, the court below had the right to inquire as to the validity of the lien, and, having found it invalid for reasons sufficiently set forth in the opinion of the judge who heard the case, the distribution made by him should be sustained.

It is claimed by the appellant, however, that our case of Nolt v. Crow, 22 Pa. Superior Ct. 113, is in conflict with this conclusion, or that it at least limits a contesting creditor to the simple question of priority and that the judgment in the scire facias fixes the validity of the lien. We do not so understand it. In that case, Judge Smith says : “A judgment on a mechanic’s lien ranks, as a judgment, from the date of its entry. As against incumbrances of later date, it is, on the face of the record, a prior lien on the property bound by it. Against incumbrances earlier in date, however, the matters that gave it-priority under the mechanic’s lien law must be affirmatively shown, since the judgment implies nothing beyond the indebtedness on which it is based.” It follows, of course, that the validity of the lien must be established, and the right to inquire into it is not taken away by the entry of the judgment. It is true that Judge Smith follows what has been quoted by remarks relating solely to the question of priority, saying : “ To give it such priority, proof must be made that the building to which it relates was commenced before such incumbrances were created; that work was done or materials furnished by the claimant, for or about the construction of the building, for which the law gives a lien; and that the claim therefor was filed as a lien within six months thereafter.” This, of course, is correct, and assumes that the lien for which priority was claimed was valid, for, if invalid, there could, be no priority, because there was no lien. In that case, however, the question as to the validity of the lien was not involved. The only question was as to the right of other creditors to dispute the amount of the judgment. As to this, Judge Smith, in his opinion, says:

“ Apart from the alleged delay in filing, the principal ground on which the mechanic’s lien is assailed is that the contract for the work, which embraced eighty-six buildings, was entire, and not divisible; that full performance has not been shown; and that without full performance there can be no recovery or right to a lien.
“ The measure of performance is a matter which concerns only the parties to the contract. The owner may waive any feature of it which is designed merely for his benefit. He may, for instance, waive delay in performing, failure to complete, or defects in the quality of the work or materials. It is sufficient if the claimant has done, to the satisfaction of the owner, anything for which the law gives a lien. He is not bound to perform his contract, nor is the owner required to hold him to it, merely to serve the purpose of those who are not parties to it. If other incumbrancers may impeach his lien on the ground of incomplete performance, they may with equal right impeach it for failure to perform within the stipulated time, or for defects in the wort or materials. The owner may stand on the letter of the contract and hold the claimant to its terms, if he so chooses, but strangers to the contract have no such right.”

To this point in this case, there is nothing, so far as we can see, in any* sense in conflict with Safe Deposit Co. v. Iron & Steel Co., 176 Pa. 536, and it is all that is necessary to be said in the decision of the case. When it is added, however: “ And whatever the right of other incumbrancers to contest the builder’s right to a lien, while it remains in the form of a claim filed, it is barred by judgment on the claim. In the absence of fraud or collusion, such judgment is conclusive of the right to a lien,” this, it seems to us, is not a necessary conclusion from what has been previously said, is not necessary to the decision of the case and would seem to be out of harmony with the cases already cited. We prefer, therefore, to rest Nolt v. Crow, upon what is necessarily decided therein, as growing out of the facts of the case.

This case arose subsequently to the passage of the Mechanic’s Lien Act of June 4, 1901, P. L. 431, and, inasmuch as the mortgagee did not intervene in any way' under the provisions of sections 23 and 24 of the said act, we do not see that the judgment entered upon the scire facias had any greater or any less force and effect than prior to the passage of that act.

Upon the consideration of the whole case, as presented, we discover no error in the distribution made by the court below.

Decree affirmed and appeal dismissed, at the costs of the appellant.


text:
    Prudential Trust Company to use v. Hildebrand
    (No. 2).
    October 7, 1907:
    Argued April 16, 1907.
    Appeals, Nos. 124, 125, 126,127, 128 and 129, April T., 1907, by S. J. Campbell, from order of C. P. No. 1, Allegheny Co., Sept. T., 1905, No. 57, on exceptions to auditor’s report in case of The Prudential Trust Company to use of Michael P. Howley v. W. E. Hildebrand, former owner, with notice to Frank P. Howley, present owner.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Beaver, J.,

The appeal in this case and the five which follow it in regular order are from a decree, distributing a fund in the hands of the sheriff, arising from the sale of.the real estate of the defendant.

The claims represented by these appeals were judgments upon writs of sci. fa. upon mechanics’ liens filed against six separate properties belonging to the defendant. The money for distribution was awarded to the plaintiff who claimed under a mortgage which was alleged by the appellant to be a junior lien upon' the premises from the sale of which the fund arose.

The question raised by the appeal is similar to that in No. 123 of April Term, 1907, in which an opinion has this day been filed, ante, p. 249.

The court below held the mechanics’ liens in all of the cases invalid and the appellant here seeks to reverse the decree of distribution, on the ground that, judgment having been entered upon the sci. fa. upon the mechanics’ liens, the question of the validity of the lien was thereby established and that the appellee here was bound by that judgment, except as to the mere question of the priority of lien.-

For the reasons stated in the opinion in 123 of April Term, 1907, the appellant’s contention cannot prevail.

The decree is, therefore, affirmed and the appeal dismissed at the costs of the appellant.


author: Rice, P. J.,

text:
    Commonwealth v. Mtynarczyk, Appellant.

      Criminal law — Rape—Threats—Charge.
    On the trial of an indictment for rape, it appeared that the prosecutrix delayed informing her husband of the circumstance until the evening after the morning it occurred, and brought no criminal prosecution until three months thereafter, and that the prosecutrix and her husband, had had a quarrel with the prisoner about a business transaction, and prosecutrix had made threats against him. Defendant presented this point: “The delay in the prosecution should be considered by the jury, and if her explanation of same is unreasonable, and you find from the evidence that it was done to extort money or property from the defendant, these facts afiect her credibility, and if you have a doubt about the truth of her story, then it would be your duty to acquit." The court refused the point, saying: “A reasonable doubt about anything that is material to guilt should work acquittal of defendant, simply some trifling doubt about immaterial things should not." Held, that the answer was harmful error, inasmuch as it had a tendency to create, in the minds of the jury, the impression that the delay under the circumstances was a trifling or immaterial matter.
    Submitted May 6, 1907.
    Appeal, No. 14, April T., 1907, by defendant, from judgment of O. & T. Westmoreland Co., Feb. T., 1906, No. 1, on verdict of guilty in case of Commonwealth v. W. Anzelm Mtynarczyk.
    Before Rice, P. J., Pobteb, Hendebson, Mobbison, Oblady, Head and Beaveb, JJ.
    Reversed.
    Indictment for rape. Before McConnell, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Error assigned among others was answer to the point quoted in the opinion of the Superior Court.

      Benna Q. Ogden and Wm. T. Born, for appellant

      J. E. B. Cunningham, for commonwealth.

      October 7, 1907:
   Opinion by

Rice, P. J.,

The first three assignments of error relate to the admission of testimony, the fourth to a portion of the charge of the court, the fifth, sixth, seventh and eighth to the answers to points submitted by the defendant, and the ninth to the refusal of the defendant’s motion for a new trial. With regard to the last we remark that the motion was based upon ex parte affidavits alleging after discovered testimony. An examination of the affidavits fails to convince us that the court committed an abuse of discretion in overruling the motion. Under the certificate of the trial judge the only matters properly before us for review are the answers to the points, and as to them we are of opinion that no reversible error was committed except in the answer to the seventh point. We shall, therefore, not discuss the assignments as to the admission of testimony or as to the instructions alleged to have been contained in the general charge. In order to a proper understanding of the question raised by the defendant’s seventh point it will be necessary to briefly recite some of the facts.

The prosecutrix, a married woman, testified that she went to the parish house, occupied by the defendant as priest, between seven and eight o’clock in the morning, for the purpose of collecting a small sum due her husband. She says that after she had transacted the business and was about to leave the house, the defendant solicited her to go upstairs with him, and upon her refusal, caught hold of her,, locked the front door, and dragged and pushed her upstairs. On reaching the second story, she says, he pushed her through one room, locking the door and putting the key in his pocket, and threw her upon a bed in the adjoining room. Noticing that a window in this room was raised, he went to close it, and while doing so she sprang from the bed and tried to escape from the room. She says he again seized her, and, after several attempts, notwithstanding her resistance and outcries, not only succeeded in his purpose but repeated the criminal act. It will be seen this is not a case where the act was accomplished while the woman was insensible through fright or any other cause, or where her consent was obtained by imposition, or where her will was 'overcome by fear so extreme as to deter her from resistance. It is a case wherein, it is claimed, the defendant intended to gratify his passion at all events and notwithstanding the utmost resistance on the part of the woman, and wherein there was on her part the utmost resistance of which she was capable. It is argued that, by reason of the nearness of the much traveled street, and other habitations, and the degree of physical force necessary to be exerted by the defendant, and the extent of physical resistance of which she was capable, her testimony is incredible; but that was a question for the jury, not for the court. But it is deemed proper to say that the circumstances narrated by her were of such a nature as to require scrutiny of her testimony, and the most careful consideration of the evidence as to her subsequent conduct. In such a case, if ever, the admonition of Sir Mathew Hale, quoted by Blackstone (4 Com. 215) should be observed by court and jury, and care should be taken lest indignation against the defendant, because of his calling and his relation to the prosecutrix and her husband, be permitted to obscure the distinction between an offense against chastity, grevious as it may have been, and the more heinous offense against the person charged in the indictment. It is deemed an important test of sincerity of the woman that she made prompt complaint, and if she concealed the injury for any considerable time after she had opportunity to complain, this and the like circumstances justify a strong inference against the truthfulness of her testimony, particularly so far as it relates to the grade of the crime. In this case the alleged outrage was committed between seven and eight o’clock in the morning. . The prosecutrix passed along the streets, which were shown to have been much traveled at this time of the day, to her home, and made no complaint to anyone until her husband returned from his work in the evening. Her explanation of the delay appears to have been satisfactory to the jury, and we will make no further comment on the fact. But in addition to this delay in making complaint to her husband, there was a delay of nearly three months before the prosecutrix made the information upon which the warrant was issued for the defendant’s arrest. The fact of this delay in prosecuting is given additional significance by the fact that the prosecutrix and her husband had a dispute with the defendant growing out of a land contract entered into before the alleged assault, and by the testimony as to threats alleged to have been made by the prosecutrix of what she would do if the defendant did not comply with her demand. The defendant’s seventh point was evidently framed for the purpose of having prominently brought to the attention of the jury the fact of this delay 'and its significance in view of the other circumstances. The point reads: “ The delay in the prosecution should be considered by the jury, and if her explanation of same is unreasonable, and you find from the evidence that it was done to extort money or property from the defendant, these facts affect her credibility, and if you have a doubt about the truth of her story, then it would be your duty to acquit.” If the learned judge had refused the point because the word “ doubt ” was not accompanied by the qualifying word “ reasonable,” he would have been technically right. But even though the point were to be refused because of this technical defect in its wording it was highly proper that the general thought contained in the point should be brought to the attention of the jury; at least that its importance should not be minimized. In refusing the point the learned judge said: “ A reasonable doubt about anything that is material to guilt should work acquittal of defendant, simply some trifling doubt about immaterial things should not.” The answer is not characterized by the usual clearness of the learned trial judge; but we cannot avoid the conclusion that it had a tendency to create in the minds of the jury the impression that the delay under the circumstances was a trifling or immaterial matter. Of course it was not conclusive. It was subject to such explanation as the prosecutrix could make. Nevertheless, if the delay was accompanied by such conduct and threats as showed that the prosecution was held in abeyance until the prosecutrix’s demands regarding the land contract were complied with, and that the prosecution would not be instituted if they were complied with, it was an important and material fact to be considered by the jury, in connection with the other extraordinary circumstances. We cannot regard the error as harmless; a relevant fact which might create a reasonable doubt cannot be regarded as trifling and unimportant in the trial of an indictment for rape. We are of opinion that the answer was misleading and, therefore, erroneous, and that the cause of justice will be subserved by a retrial of the case.

Judgment reversed and venire facias de novo awarded.


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    Berney v. Pennsylvania Railroad Company, Appellant.

      Common carriers — Carriers—Railroads—Question of fact — Delivery of goods.

    In an action against a carrier to recover the value of goods alleged not to have been delivered, plaintiff’s witness testified that the plaintiff receipted for a consignment of goods, and received a delivery, but that on subsequent examination the particular package for which suit was brought, was not found among the goods delivered. Witnesses for the railroad company testified that the package had been delivered according to their records. Held, that the case was purely one of fact and for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued May 6, 1907.
    Appeal, No. 26, April T., 1907, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1904, No. 289, on verdict for plaintiff in case of I. Berney and M. Berney, trading as Berney Brothers, v. The Pennsylvania Railroad Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit against a carrier for goods not delivered.
    O’Connor, P. J., charged as follows:
    The issue you have been sworn to try is entered to No. 289, December Term, 1904, of the court of common pleas of Cambria county. In that issue Berney Brothers claim from the defendant company, the Pennsylvania Railroad Company, the value of a consignment of shirts which was purchased by them in the city of New York and sent to their address in the city of Johnstown. Upon receipt of the bill of lading, according to the prevailing custom, Berney Brothers paid the freight on I lie goods, and within several days they discovered that they liad not gotten their goods. They made report of the matter, or notified the authorities there who bad charge of the affairs of the Pennsylvania Railroad Company, but claim that they never received the goods. Mr. Berney testified to that state .of facts, and the young man who attended to looking.after that part of the business also testified to that. Mr. Berney further testified that they were forced to pay the bill, after being threatened with suit, and that the Hub Shirt Company agreed to give them a six per cent discount if they were not obliged to press their claim against them.
    The Pennsylvania Railroad Company produced its agent in charge and he testified that the records show that the particular goods in question were receipted for and delivered to Berney Brothers. Another witness testified in the same line— that he took the case of goods out of the car, and that so far as the records show it was delivered to Berney Brothers, and he does not have any personal recollection of this fact; he simply states that his records show that the box was taken from the car and delivered to the plaintiffs.
    You will take all the testimony and from it discover what the facts are. If you are satisfied, from the weight of the evidence, that Berney Brothers did not receive the goods from the Pennsylvania Railroad Company, they would be entitled to recover the amount they claim in this case, which amount will be shown by the calculation which you will have out with you when you go to the jury room'. If you are satisfied, from the weight of the evidence, that the plaintiffs did receive this box of shirts, then your verdict will be for the defendant company. That is the only question of fact in the case, and this question you alone must determine. We do not wish to indicate that we attach more weight to the evidence on one side of the case than that on the other side. We submit the question to you, and you must find what the facts are from the evidence in the ease. Cast aside any sympathy or prejudice you may have for or against either of the parties to this case. Determine what the facts are and render a verdict on the facts as they appear to you from the weight of the evidence. There' is no dispute as to the amount. If you find for the plaintiffs you will find for the amount set forth in the statement which will be sent out with you. If you find for the defendant company you simply find for the defendant.
    Counsel for defendant company has requested the court to instruct the jury as follows :
    2. That if they do not believe they received that particular box, then they cannot recover until they return the box and its contents which they receipted for, accepted and did not return.- Answer/ This point is refused, as there is no evidence of plaintiffs having received any goods not their own. [1]
    October 7, 1907:
    8. That under all the evidence the verdict should be for the defendant company. Answer / We refuse this point. [.2]
    Verdict and judgment for plaintiff for $68.75. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      H. W. Storey, for appellant.

      Percy Allen Rose, of Forest <f Percy Allen Rose, with him Horace R. Rose, for appellees.
   Opinion by

Morrison, J.,

In this action of assumpsit the plaintiff avers a contract made with the defendant on September 4,1908, that the latter would transport from New York City and deliver to the plaintiffs at Johnstown, Pennsylvania, a certain case of shirts of the value of $71.87; that the shirts were delivered to the defendant at New York and carried by it to Johnstown, where the plaintiffs paid the defendant for its services, in accordance with the contract, $1.19; that the defendant neglected and refused to deliver the goods to the plaintiffs, although several times requested so to do, and that by reason of this breach of said contract, the plaintiffs suffered damages, before the bringing of this suit, in the sum of $71.06. The evidence was sufficient to warrant the jury in finding the above facts in favor of the plaintiffs, although it was in conflict. The defendant did not deny the contract, nor the receipt of the $1.19, but averred that the case of shirts was duly delivered to the plaintiffs at Johnstown, in accordance with the contract.

As the case was tried and .submitted to the jury, it was purely a question of fact on conflicting evidence as to whether or not the shirts were delivered by the defendant to the plaintiffs. The learned court submitted this question and the measure of damages to the jury in a charge of which the defendant has no just ground of complaint. We find no merit in the assignments of error. The case was well tried on its merits and the jury having found in favor of the plaintiffs, and assessed the damages at the actual amount of their loss, if the plaintiffs did not receive the goods, we can see no adequate reason for disturbing the judgment.

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


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    Fair’s Estate.

      Appeals — Interlocutory decree — Appointment of auditor — Quashing appeal.

    An order of the orphans’ court appointing an auditor to pass upon exceptions to an executor’s account, restate and reform the account, and to make distribution of the balance found due, is an interlocutory order from which an independent appeal does not lie.

      Appeals — Defective paper-book — Failure to print auditor’s report — Rule 27 of Superior Court.

    An appeal from an order confirming an auditor’s report will be quashed, where the appellant’s paper-book does not contain a copy of the auditor’s report and the exceptions thereto, and does not set forth the decree upon such exceptions.
    Argued May 6, 1907.
    Appeal, No. 46, April T., 1907, by J. C. Fair, from decree of O. C. Clarion Co., appointing an auditor in Estate of Hiram Fair, deceased.
    Before Rice, P. J., Hendeksoít, Mobkisok, Oblady, Head and Beaveb, JJ.
    Appeal quashed.
    Decree appointing an auditor. '
    The opinion of the Superior Court states the case.

      Error assigned was as follows:
    The court erred in granting exceptant’s motion, which motion was as follows:
    “ And now, November 27, 1905, Mary J. Fair, exceptant, by Corbett and Rugh, her attorneys, move the court in the above estate for the appointment of an auditor to pass upon the exceptions filed in the same, and reform the account in accordance therewith,” upon which the court made the following order:

      October 7, 1907:
    “And now, February 26, 1906, after argument and due consideration, rule absolute, and S. K. Clarke, Esq., appointed auditor to pass upon the exceptions, instate and reform the account, make distribution if any balance is found to be due to the estate and report at the next regular term of court. The confirmation of the said account is hereby continued until the further order of the court.”

      F. J. Maffett, of Maffett Sf Rimer, with him G-. Gr. Sloan, for appellant.

      Ron Q. Corbett, for appellee, filed no printed brief.
   Opinion by

Rice, P. J.,

The appellant is placed in this dilemma : The order of which he complains, appointing an auditor to pass upon the exceptions, restate and reform his account and make distribution of the balance found due, is clearly an interlocutory order from which an independent appeal does not lie. If, therefore, as might be inferred from appellant’s paper-book, no final decree has been entered, the appeal is premature. If, on the other hand, the auditor made report, which was confirmed, and final decree was entered, the appellant’s paper-book is defective, in material particulars : it does not contain a copy of all the docket entries; it does not contain a copy of the auditor’s report and the exceptions thereto, and does not set forth the decree upon such exceptions. See rule 27 of the Superior Court. In either event the appellee’s motion to quash must prevail. We remark in addition that we discover no such plain misconstruction on the part of the court below of its own rules, or such abuse of its discretionary power to relieve from technical defaults, where this can be done without injury to either party, as would justify this court in interfering.

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


author: Per Curiam,

text:
    Commonwealth, Appellant, v. Reinsel.

      Appeals — Interlocutory orden — Constable’s return — Process—Quashing appeal.

    In the absence of a statute authorizing it, no appeal can be taken from a judgment or order which is not a final disposition of the matter in controversy.
    •The court of quarter sessions is not bound to issue process upon a constable’s return to bring in a person charged with violation of the liquor laws, or, in default of bail, to commit him to prison. Such action is within the discretion of the court, and a very plain case of the abuse of its discretion ought to be exhibited by the record to warrant an appeal. If the court has granted such an order, but upon mature consideration, and before indictment found, discharges the accused, the court cannot be convicted of reversible error.
    Argued May 6, 1907.
    Appeal, No. 212, April T., 1907, by plaintiff, from order of Q. S. Clarion Co., May T., 1907, No. 1, quashing constable’s return in case of Commonwealth v. P. M. Reinsel.
    Before Rice, P. J., Henderson, Morrison, Or-lad y,' Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash constable’s return. Before Wilson, P. J.
    From the record it appeared that on February 25, 1907, C. H. Buzzard, constable of Redbank township, at the regular term of the court of quarter sessions of Clarion county, in his official return, inter alia, in answer to the twenty-sixth question, “Any other violation of law?” answered and made return, “Yes, see notice hereto attached,” which notice attached and made part of said official return is as follows :
    “ New Mayvtlle, Pa., Dec. 27, 1906.
    “Mr. Judge Wilson
    “ P M Reinsel is selling wine by the gal and by the pint and quart to ho ever calles for it and to hotel men and I can prove it.
    “ Yours Truly
    “ G. N. Reinsel.
    “ he sold to James Shofestall of newmayville and Billy Martin of Fairmount City and Curt Brown, Clarence Reinsel, Blace Crate ”

      October 7, 1907 :
    On March 14, 1907, the district attorney by written motion, setting forth verbatim the said return of the constable, asked leave of court to send up a bill of indictment to the next grand jury against P. M. Reinsel on the foregoing constable’s return, which motion was granted.
    On March 6, 1907, process was issued and the defendant taken into custody. On March 26, 1907, the court on motion of counsel for the defendant quashed the constable’s return and discharged the defendant, by an order indorsed on said motion to quash, which order is as follows : “ March 26, 1907, the constable’s return is quashed and the defendant is discharged. By the Court. H. R. Wilson, P. J.” To this order the commonwealth excepted and bill was sealed.

      Error assigned was the order of the court.

      Wm. J. Geary, for appellant.
    The return was sufficient to support an indictment: McCullough v. Com., 67 Pa. 30; Com. v. Bredin, 165 Pa. 224; Com. v. New Bethlehem, 15 Pa. Superior Ct. 158; Com. v. Mahoning Powder Co., 14 Pa. Dist. Rep. 481; Com. v. Keenan, 67 Pa. 203.

      George F. Whitmer, for appellee.
    The complaint must be made upon probable cause, and the information should set out the time of the commission of the offense and place of commission and should describe the offense as nearly as may be in the words of the act of assembly violated: Com. v. Schoenhutt, 3 Phila. 20; Com. v. Frank, 7 Pa. Dist. Rep. 143 ; Conner v. Com., 3 Binn. 38; Com. v. Pfaff, 17 Pa. C. C. Rep. 302 ; Rowand v. Com., 82 Pa. 405; Com. v. English, 11 Phila. 439.
   Per Curiam,

In the absence of a statute authorizing it, no appeal can be taken from a judgment or order which is not a final disposition of the matter in controversy, and it might be claimed with some plausibility that as the order permitting the district attorney to send a bill before the grand jury has not been formally revoked this appeal is premature. But, apart from that consideration, the appeal must be dismissed. Conceding the power of the quarter sessions, before indictment found, to issue process upon a constable’s return to bring in the person charged with violation of the liquor laws, the court is not bound to award such process, or to hold the accused to bail, or, in default of bail, to commit him to prison, no matter how informal, ambiguous or lacking in certainty the return may be. The question of the formality and certainty that will be required in a constable’s return, before proceeding in this summary way, is addressed in the first instance to the sound judgment and discretion of the quarter sessions, and awery plain case of abuse of its discretion ought to be exhibited by the record in order to warrant an appeal. We cannot say that such a case is presented by this record. And if the court in the exercise of a sound discretion could have refused the motion for process on the return, it was not reversible error to discharge the accused — no indictment having been found in the meantime — if upon more mature consideration it was the court’s conclusion that the process ought not to have been awarded.

The appeal is quashed.


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    Early v. Coleman, Appellant.

      Will — Construction of — Life estate — Lawful heirs.

    Where a father devises land to his daughter “for her natural life, but if she has lawful heirs then it is at her own disposal at her decease,” the daughter takes a life estate which does not become a fee simple estate upon the birth of issue.
    Argued May 6, 1907.
    Appeal No. 2, April T., 1907, by defendant, from judgment of C. P. Clarion Co., for plaintiff on case stated in case of Andrew J. Early and Louisa A. Early v. A. B. Coleman.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Case stated to determine marketable title to real estate.
    In addition to the facts stated in the opinion of the Superior Court, it appeared that Rachel Summerville after her father’s death married and had lawful issue, and that thereafter she sold and conveyed the land in controversy.
    October 7, 1907:

      Error assigned was in entering judgment for plaintiff.

      F. J. Maffett, of Maffett Reimer, with him E. F. Rays, and W. A. $ W. W. Hindman, for appellant, cited:
    Myers v. Bentz, 127 Pa. 222.

      Don C. Corbett, for appellee, filed no printed brief.
   Opinion by

Rice, P. J.,

The devise to Rachel Summerville, the plaintiffs’ predecessor in title, upon the construction of which this case turns, was in these words: “ I give and Bequeath to Rachel Summerville, My Daughter, Four Hundred and Seventy-five dollars ($475) in Money .... also the one-half of the farm that Samuel Summerville now lives on for her natural life But if she has lawful heirs then it is at her own disposal at her Decease.” According to the stipulation of the case stated, if a fee simple became vested in Rachel Summerville upon her having lawful issue judgment was properly entered for the plaintiff; but, if not, judgment should have been entered for the defendant. The words “ at her Decease ” cannot be rejected as superfluous or meaningless. It was then that the'land in which she had been given a life estate was to be at her disposal; thus implying that she was not to have unlimited power of alienation, but only to make such disposition of the remainder as would take effect upon her death. So far as the decision of the present question is concerned we see no essential difference between such a devise and a devise of land for life coupled with a power of appointment by will. In the recent case of Schoyer v. Kay, 217 Pa. 32, it was held that a devise of rents, issues and profits of realty to a daughter-in-law of the devisor during her natural life, coupled with the words “ It is my will that she shall not have power to sell or encumber the said property, but that she shall have power to devise the same by last will and testament,” gave the devisee a life estate only, with power of appointment. It may be said that the devise construed in that case is materially different from the one under consideration in this case .because there was in the former an express provision that the devisee should not have power to sell or incumber the said property. But this is not sufficient to distinguish the cases, because, as was shown in the opinion of the court in that case, this clause of the sentence “ was superfluous, but did no harm as it merely emphasizes the intent that there should be no alienation except by will.” With this explanation the cases are strikingly parallel. We are of opinion that the estate devised to Rachel Summerville did not become a fee simple upon the birth of issue and, therefore, under the stipulation of the case stated, judgment should be entered for the defendant.

The judgment is reversed and judgment directed for the defendant.


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    Reynoldsville Distilling Company’s License.

      Liquor law — Distiller’s license — Refusal of license — Appeal.
    A refusal of a distiller’s license will not be reversed where the order is in the following form: “After hearing and upon due consideration, this application is refused;” and this is the case although no remonstrance was filed, and the certificate and bond were in due form, and no reason was given on the record for the refusal.
    Argued May 6, 1907.
    Appeal, No. 217, April T., 1907, by the Reynoldsville Distilling Company, from order of Q. S. Jefferson Co., Jan. T.-, 1907, No. 47, refusing a distiller’s license.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Application for a distiller’s license. Before Reed, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Clark § Steioart, for appellant.
    The order was erroneous: Pittsburg Brewing Co.’s Wholesale Dealer’s License, 12 Pa. Superior Ct. 129 ; Schoenhofen Brewing Co.’s License, 8 Pa. Superior Ct. 141; American Brewing Co.’s License, 161 Pa. 378; Pollard’s Petition, 127 Pa. 507; Johnson’s License, 156 Pa. 322; Snyder's App., 4 Pa. Superior Ct. 648; Alfonso’s License, 11 Pa. Superior Ct. 565.
    October 7, 1907:
   Per Curiam,

This is an appeal from an order refusing the appellant’s application for a distiller’s license. The order is in these words : “ January 28, 1907. After hearing and upon due consideration this application is refused.” It is urged that as no remonstrance was filed, and the petition, certificate and bond were in due form, the court’s refusal of the application, without expressing of record its reasons for so doing, was reversible error. So far as the determination of this question is concerned, there is no difference between such a case and a case where no fact or objection is stated in the remonstrance which would justify the court in refusing the application. We had occasion to consider the question in a case of the latter kind in Black Diamond Distilling Company’s License, 33 Pa. Superior Co. 649, decided in May last, and there said: “ But although the court’s discretion is not so broad in such an application as in an application for a wholesale or a retail liquor license, and the reasons which may influence the discretion of the court are fewer in the former than in the latter cases, yet the same general principle upon which it is presumed on appeal, in the absence of anything to show the contrary that the license was refused for a legal reason, and not arbitrarily, applies as well in one case as in the other.” We also stated that Johnson’s License, 156 Pa. 322, as distinguished and explained in Gross’s License, 161 Pa. 344, is not authority for holding differently. There being nothing in this record to show the contrary, it must be presumed that the appellant’s application was refused for a legal reason and not arbitrarily.

The order is affirmed.


text:
    Baughman, Appellant, v. Baughman.
    October 7, 1907:

      Divorce — Insanity no ground for divorce — Acts of April 13, 1843, P. L. 233 and April 18, 1905, P. L. 211.
    Hopeless insanity is not ground for divorce in Pennsylvania.
    The Act of April 18, 1905, P. L. 211, amending sec. 8 of the Act of April 13,1843, P. L. 233, does make insanity a new ground of divorce.
    Argued May 7, 1907.
    Appeal, No. 87, April T., 1907, by libelant, from decree of O. P. Jefferson Co., Jan. T., 1905, No. 54, dismissing libel in divorce in case of Emma Rebecca Baughman v. Robert Isaac Baughman.
    Before Rice, P. J., Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce. Before Reed, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was decree dismissing the bill.

      W. N. Conrad, for appellant.
    It is the intention of the Act of Assembly of April 18, 1905, P. L. 211, to make hopeless insanity a ground for divorce : Bray v. Bray, 10 Northampton, 167.
   Opinion by

Orlady, J.,

On August 28, 1905, a petition for a divorce was presented by the wife on the ground that her husband “ became insane in August, 1887, and was confined under the Act of April 20, 1869, P. L. 78, in the Asylum for the Insane at Warren, Pa., where he remained until December, 1894 ; he was then transferred to the Asylum for the Chronic Insane at Wernersville, Pa., where he has been continuously confined for a period of more than ten years. In November, 1900, he was adjudged, under the Act of June IB, 1836, P. L. 589, to be a lunatic without lucid intervals for more than thirteen years then last past; a committee of his person and estate was appointed, who qualified and has continued in the discharge,of his duties.” The court below dismissed the libel, and the only question presented by this record is, Is hopeless insanity a cause for divorce under the amendment and supplement of the Act of April 18, 1905, P. L. 211, to sec. 8 of the Act of April 13, 1843, P. L. 283 ?

The provisions of the eighth section of the act of 1843 are not named or directly suggested by its title. The act contains ten distinct unrelated subjects in as many sections. The eighth section is as follows : “ That in cases where the wife is lunatic or non compos mentis, the courts of common pleas of this commonwealth are invested with authority to receive a petition or libel for divorce, which may be exhibited by any relative or next friend of the wife ; and the affidavit required by the act concerning divorces may be made in the manner required by the act by such relative or next friend ; and all the provisions of the several acts relating to divorces shall apply to all applications made under the directions of this section. Provided, that the fact of lunacy of the wife and such circumstances as may be sufficient to satisfy the mind of the court as to the truth of the allegation shall be set forth in the petition; and upon the hearing of the ease before the court or upon an issue to be tried by the jury, the question of lunacy with every other matter of fact that is affirmed by one party and denied by the other, shall be heard and investigated in the manner prescribed by the provisions of the several acts concerning divorces.”

All that can be claimed for this section in relation to divorce proceedings where the wife is a lunatic, is that to relieve the confusion among the English and American authorities on the right of an insane wife to institute an action for divorce, the courts of this commonwealth were invested with authority to receive the petition for divorce when exhibited by her relative or next friend, and to open the courts to her complaint, which to that time had been considered as closed, but it was added : “ All the provisions of the several acts relating to divorces shall apply to all applications under the directions of this section.” No new cause of divorce was declared, and it was distinctly provided that the fact of lunacy, and every other matter of fact should be heard and investigated as provided by the earlier statutes. “ The truth of the allegation ” refers no more to the fact of lunacy than it does to the actual cause for divorce as set out in the petition and established by the evidence. The section changed the practice only in such cases, and did not give a new cause for the action. It was but a regillation of the practice to be followed “ where the wife is lunatic or non compos mentis ” in cases where such wife is a party injured; as specified in the acts of March. 13, 1815, 6 Smith’s Laws, 286, and the subsequent legislation, so as to have her case heard and determined. It was urged by text-writers and in decisions that, as single persons are not compelled to marry, and the married can bring or defend divorce suits or not as they choose, and since marriage can be entered into only through the exercise of a competent understanding, can a married party, whose reason has fled, be a plaintiff or defendant, acting either independently or by guardian in a dissolution suit ? If he can, the law seems to have created an anomaly. If he cannot, then the insanity of one of the parties has taken from the other the rights which the divorce law gave, and it was contended that in the light of principle there was no reason why a divorce suit should not be carried on by or against an insane person, other than would apply to any civil action of tort or contract. Divorce, where there is cause for it, is the plaintiff’s right. So it was held that legislation may, from public considerations or out of regard to what will often be the real interest of the party, authorize a dissolution when urged by a guardian or next friend. See 2 Bishop on Marriage and Divorce, secs. 304-308, and cases cited.

To make this misfortune— the greatest that can befall us— the ground of the next greatest wrong and injustice, would be truly adding insult and injury to providential misfortune : 2 Cord on Rights of Married Women, sec. 944. In Matchin v. Matchin, 6 Pa. 332, it was held that a wife’s insanity is not a bar to a divorce for adultery committed by her when she was insane, but the ground for divorce in that case was her adulterous act, and not her insanity.

Nor does the Act of April 18, 1905, P. L. 211, in direct terms make insanity of either party a ground for divorce. It is an amendment of the eighth section of the act of 1843, and extends the provisions of the former act to cases where the husband is a hopeless lunatic or non compos mentis, .and provides for special procedure and the degree of proof required, but it goes no further. If, as contended by the appellant (that an added, distinct and special cause of divorce, to wit: insanity, was provided), it would not be necessary to establish more than that particular fact, without regard to the guilt or transgression of the defendant, in order to entitle the libelant to a decree, but the statute requires much more than that.

Clause A requires that “ All the provisions of the ¡several acts relating to divorces shall apply to all applications made under this act.” But it does not provide the character of the decree to be entered — whether a vinculo matrimonii oi.a mensa et thoro. If the insane party has committed any act, either before or after becoming insane, entitling the injured party to a divorce, he or she may be proceeded against upon that cause, but before instituting the proceeding a preliminary step is made necessary by the act of 1905, to wit: the appointment of a committee of such lunatic upon whom the summons shall be served, and who is then the proper person to defend the action.

Clause B provides that in addition to the fact of lunacy the mind of the court is to be satisfied as to the truth of the allegation, by the circumstances set out in the petition and verified by the affidavit of the petitioner; and upon hearing in addition to the question of lunacy, there must be sufficient proof of every other matter of fact that is affirmed by one party and denied by the other. The allegation made, and the proof to sustain it, are separate and independent of the proof of lunacy, and refer to the ground or cause of divorce. Clause C is ambiguous, and the most that can be claimed for it is in defining the character and measure of proof required as to the insanity of the libelant before an action instituted on his or her behalf can succeed.

No preceding statute declared insanity to be a sufficient ground for divorce, nor is it made so by the act of 1905. If the legislature had intended to add another and distinct cause for divorce it would have said so in unmistakable language, and, until it is so declared, the eighth section of the act of 1848, as amended by the act of 1905, will be treated as relating to procedure only, and not as declaring a new cause of action.

The decree is affirmed.