text:
    Hay, Appellant, v. Valley Pike Company.

      Corporations — Turnpike companies — Eminent domain — Failure to file bond — Minor’s estate — Laches.
    A turnpike company entered on land belonging to minors, without filing a bond, under circumstances which indicated the consent of the mother and the guardian of the minors, to the entry. Subsequently the company without filing a bond petitioned the court for the appointment of viewers. Viewers were appointed and assessed damages. The company appealed. An issue was directed and framed for a trial by jury, all the parties filing a paper signed by counsel agreeing how the case should be tried. Nothing further was done in this proceeding at the time. Many years after the minors became of age they brought an ejectment to recover the strip of land taken by the company fifteen years before. The ejectment was tried; a verdict rendered for the plaintiffs and judgment was entered on the verdict with a stay of execution for four months. The case was continued by further stays until a year after the ejectment was brought. The plaintiffs then issued a writ of habere facias. In the meantime and shortly after the judgment in ejectment, the company put the original appeal on the trial list, and the case was continued at the instance of plaintiff’s counsel from term to term, the stays continuing the status quo. After the writ of habere facias was issued the company petitioned for a further stay, and the court directed it to file a bond, and stayed the execution until further order. Held, that the order of the court was proper. Oliver v. By. Co., 131 Pa. 408, followed.
    Argued May 4, 1908.
    Appeal, No. 1, April T., 1908, by plaintiffs, from order of C. P. Cambria Co., Sept. T., 1906, No. 77, staying execution in case of John. S. Hay and George Hay v. Valley Pike Company and Johnstown Passenger Street Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for stay of execution. Before O’Connor, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order staying the execution.

      Robert S. Murphy, with him David P. Weimer, for appellant.

      February 26, 1909:

      Percy Allen Bose, with him Forest Bose and W. Horace Bose, for appellees.
   Opinion by

Head, J.,

In order to avoid the confusion that may arise from the facts that we have two separate and distinct corporations each possessing franchises of a different character, and two separate and distinct proceedings in the court below, each attended by a train of motions, rules and interlocutory orders, all interfused in the single record now before us, it becomes necessary to state, with as much clearness and precision as we may, the material facts exhibited by the record and the legal issues they present for our consideration.

In 1889 the land, the subject of this controversy, was owned by the widow and two minor children of John B. Hay, who had died a few years before, intestate as we understand, seized of the premises. In that year the Valley Pike Company, a duly created corporation of the state and invested with the right of eminent domain, entered upon a portion of this land and began the construction of the turnpike authorized by its charter. It does not appear that this entry was preceded by any formal grant or release from the widow and guardian of the children, or by the tender to them or filing in court for their benefit, of a bond securing to them the damages, if any, that would accrue from the construction and maintenance of the highway. But as the entry was open, the work of a public character involving the expenditure of both time and money, as the owners took no steps in court or out of it to protect themselves against what is now alleged to have been a trespass pure and simple, and especially in view of the proceedings that followed, we can hardly escape the inference that there must have been some understanding between the landowners and the company, and that the entry of the latter was not then regarded as an unlawful invasion of the rights of the former.

To No. 15 of June Term, 1892, of the court of common pleas of Cambria county, the Pike company'presented its petition setting forth its charter authorizing it to construct a turnpike from Johnstown to Bens creek, and that in pursuance of its charter powers it had entered on a strip of the land in question and constructed its turnpike on and along the same and that by reason of the minority of the two children (the present plaintiffs) it had been unable to agree with the owners of the land as to the compensation due them for the strip of ground taken for the public purposes of the corporation. It prayed for the appointment of viewers. Notice of the filing of this petition was duly served on the widow and guardian of the minors. In due time, no answer having been filed or objection made by the owners, the viewers were appointed. The viewers met on the premises on the day fixed, and their report shows that both the widow and guardian were present. This report filed in court awarded $500 damages to the owners. To this report they filed no exceptions; from it they never appealed.

The company, however, did appeal, and, on March 13, 1893, the court made an order directing a feigned issue to be framed, in which the owners should be plaintiffs and the company defendant, “to determine what damages, if any, will be sustained by the plaintiffs, by reason of the opening and constructing of said turnpike by the defendant,” etc. To this order there was not only no objection, but on June 30, 1893, a paper was filed, signed by counsel for all of the parties, agreeing how the case should be tried and practically constituting the feigned issue directed by the court.

From that time forward it does not appear that the present plaintiffs ever made a move to speed that proceeding or bring it to a conclusion, although one of them must have attained his majority about 1893, the other about 1901. They never undertook to repudiate the agreement made for them by their counsel, they asked for no order directing the filing of a bond, if that was what they desired, fhey made no motion to quash the proceedings on the ground that they had been improvidently begun or because the court was without jurisdiction of the parties or subject-matter. It would seem they must have concluded either that no such damages would likely be recovered as would justify the expense of further litigation, or else that they were at. liberty to ignore all that had been done as if they had been in no wise affected by it. The difficulties that would arise if the public acts and proceedings of our courts, in the administration of the law, could be thus treated by the parties we need not now stop to consider.

In January, 1905, the plaintiffs brought an action of ejectment to recover the possession of the strip of land which for about fifteen years had been open to public travel as a turnpike. The abstract of title filed by defendants, under the modern practice in the trial of such actions, exhibited all of the facts already recited and they were in no way controverted by any counter abstract. They were therefore regarded, under the rule of court, as admitted. When the cause came on for trial no witnesses were called, no testimony offered other than the abstracts of title and the various records therein referred to: A verdict was rendered for the plaintiffs and the court permitted judgment to be entered thereon with a stay of execution for four months. No objection seems to have been made from any source to the judgment thus entered. Whilst the purpose of the stay is not indicated in the order for judgment, it was manifest.

It appears from averments, in the petition for further stay and the answer thereto hereinafter referred to, not denied on one side or the other, that counsel for the Pike company had the appeal, at June Term, 1892, put on the trial list at the March and June Terms, 1906, but that at each term it was continued for some satisfactory cause and at the instance of plaintiffs’ counsel. Meantime further orders of stay became necessary to maintain the status quo and they were accordingly made, the last one on March 5, 1906, to expire on July 1 following. The case not having then been disposed of, the plaintiffs, on July 14, 1906, issued a writ of habere facias. This brought a formal petition for further stay to which answer was made, and the court in an opinion ordered and directed the company to file, at No. 15, June Term, 1892, a bond of 15,000 within ten days; that the cause be placed on the next trial list for trial and that the stay of execution be continued until the further order of the court.

We have thus fairly before us, I think, the situation that confronted the learned judge below when he made the order complained of. He declares his action, in making it, was controlled by the authority of the well-established policy of our courts as declared in Oliver v. Railway Co., 131 Pa. 408, and the line of decisions cited with approval by the learned justice who spoke for the court in that case. Wherein was he in error in so holding?

In that case, as in this, a plaintiff, who was the undisputed owner in fee of the land, brought an action of ejectment against a quasi public corporation, invested with the right of eminent domain, which, many years before, had made an entry on the land and constructed across it a portion of its public highway. There, as here, the owner was a minor at the time of the entry, and his fee was subject to the widow’s estate of his mother. There it appeared that the entry had been made with the actual consent of the mother and the acquiescence of the guardian. Here, while there is no direct evidence of such consent or acquiescence, the inference of both almost irresistibly arises from the conceded facts, and the plaintiffs have never undertaken to assert the contrary. There, as here, the corporation had obtained no valid grant from the real owner, the minor, and neglected to file a bond to secure his damages; and in that case never did anything to indicate it was attempting to lawfully condemn the land and ascertain the damages.

In the present case as soon as the work was completed the corporation began a proceeding in court to have the damages assessed. True, it did not comply with all of the legal requirements, but both parties treated the proceeding as if all were regular and carried it along, in seeming good faith, until there were a view, an award, an appeal from that award, an order of court directing an issue and an issue actually framed for a trial by jury, when their further energies seem to have been sapped in some unaccountable way and both have slept on their rights ever since.

Under these circumstances how can it be successfully contended that the situation of the defendant in this case is less favorable than was that of the railway company in the case cited? Yet there whilst the plaintiff recovered a verdict, he was not permitted to have execution of his judgment to the destruction not only of the equities that had grown up in favor of the corporation, but of the rights of the public in the highway as well, until a proper opportunity had. been afforded the corporation to file its bond and proceed as it should have done in the first instance. The following quotation from the opinion in the Oliver case demonstrates, we think, that the reasoning which supports the judgment rendered by the Supreme Court is in every sense applicable to the situation now before us: “In Railroad Co. v. Colwell, 15 Atl. Repr. 927, it was said: 'But as Colwell was at least passively derelict in knowingly permitting the railroad company to occupy and put its improvements on his land, we agree that it would be inequitable to allow the judgment to work a forfeiture of those improvements;’ and execution was accordingly stayed upon the judgment, to enable the railroad company to proceed under the statute, and have the damages assessed. There was in that case, and there is in this, no contract for the sale of the right of way capable of enforcement by means of a conditional verdict in ejectment, but the equities growing out of the entry by permission, the expenditure of money, and the construction through the premises of a continuous line of railroad, so that resumption of possession by the landowner would interrupt the traffic of the entire line, required us to send him to the tribunal which the law provides for the ascertainment of the damages to which he was entitled.” If it be said that even if this case be classified with Oliver v. Railway Co., the defendant corporation had been given all the grace to which it was entitled in the four months’ stay of execution, subject to which the judgment was entered, we are obliged to say that the delay which followed the entry of the judgment in ejectment is to us as inexplicable as that which followed the preparation for trial of the feigned issue. But so far as the record shows, the responsibility for this delay does not rest wholly on the shoulders of either of the parties litigant. Neither one of them is in a position to demand that a legal principle, otherwise applicable, should be regarded as in abeyance by reason of the laches of the other party.

We are constrained to think, therefore, that the learned trial judge correctly interpreted that case as practically controlling and fairly applied its principles in the order which he made. If the real dispute between the parties be — and there is much in the record and arguments of counsel to support the idea— whether the damages should be assessed as of the date of the original entry or only of the filing of the bond, no such question is before us. It has not yet been adjudicated by the court below, and any discussion of it by us would be not only premature but entirely useless.

For the purposes of this case we do not understand that the learned counsel for the appellants asks us to make any distinction between the rights of the Pike company and of the street railway company, the other defendant. If the former proceeds in good faith, under the order of the court, to have the plaintiffs’ damages secured or paid, then their right of possession will surely have passed and any claim that the railway company was imposing any additional servitude upon their reversion would probably be asserted in some other way. The assignments of error are all overruled.

Decree affirmed and appeal dismissed at the costs of appellants; and the record is remitted with a procedendo.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Hess v. Hanover Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Waiver—Evidence.
    Where in an action on a fire policy, it appears that the plaintiff had not filed proofs of loss, and relied upon a waiver, evidence that the adjuster of the defendant many months after the suit was brought had promised that his company would pay the loss, is not admissible to establish the waiver.
    Argued May 5, 1908.
    Appeal, No. 219, April T., 1908, by defendant, from judgment of C. P. Indiana Co., Sept. T., 1905, No. 140, on verdict for plaintiffs in case of R. L. Hess and B. M. Smith, trading as the Gipsy Mercantile Company, v. Hanover Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a policy of fire insurance. Before Tellford, J.

      February 26, 1909:
    The facts appear by the report of Hess v. Hartford Insurance Co., post, p. 158, and by the opinion of the Superior Court.
    The trial judge charged in part as follows:
    This witness further testified to having been sent for by Mr. Wright, an adjuster of the Scottish Union and Hanover Insurance Companies, two of the defendants. He says he came to Indiana and met him in March, 1906 — March 26, I believe — at the office of Mr. Mack. He says that they went over the bills, accounts, etc., and that Mr. Wright then offered him a compromise settlement. An offer of compromise is not admissible as evidence of the plaintiffs’ claim. This item of evidence relating to what occurred at Mr. Mack’s office is only to be considered by you upon the question of the waiver by the agent of the Scottish Union and Hanover Insurance Companies of their rights to proofs of loss. There is no evidence that Mr. Wright, adjuster of the two companies named, had any authority by any act of his to bind other of the defendant companies; and so you will consider this item of testimony only as it bears upon the question of a waiving of the rights of proofs of loss by the Scottish Union and the Hanover companies, defendants. You will consider this with that view in connection with the other evidence in the case.
    Verdict and judgment for plaintiffs for $600. Defendant appealed.

      Errors assigned were (1, 2) the same as in Hess v. Hartford Fire Ins. Co., post, p. 158, and (3) above instruction, quoting it.

      W. K. Jennings, with him D. C. Jennings and J. W. Mack, for appellant.

      John L. Getty, with him M. C. Watson, for appellees.
   Opinion by

Head, J.,

This case was argued with No. 218, April Term, 1908, same plaintiffs v. The Hartford Insurance Co., in which an opinion has this day been filed, post, p. 158. The first and second assignments of error in this case are identical with those disposed of in the former case and, for the reasons given in the opinion there filed, they must be dismissed. The third assignment, applicable only to this case, raises a distinct and independent question.

The fire occurred December 29, 1904. Under the terms of the policy the assured were required to file their formal written proofs of loss on or before February 28, 1905. Their failure to do so destroyed their right of action on the policy, unless that failure was induced by such acts or declarations on the part of the authorized representatives of the company, as fairly misled the assured into the belief that the defendant regarded the information, obtained at the joint meeting of the adjusters and assured, as a satisfactory substitute for the more formal proofs contemplated by the policy, and that, therefore, the preparation and filing of these proofs was no longer necessary. As a matter of fact the proofs were not filed within the time limited. If the plaintiffs’ failure to file them had not been caused by the conduct of the company prior to the time the obligation to file matured, the right of action was gone, and the contract of insurance had become practically a dead letter. “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. Ins. Co., 66 Pa. 9, ‘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:” Gould v. Ins. Co., 134 Pa. 570.

What, then, was the situation on February 28, 1905? Was there a valid and subsisting contract of insurance between the parties from which arose a then enforceable right of action in favor of the plaintiffs; or had the company’s liability then been discharged and the right of action lost? Around this question the main contention of the parties centered. Obviously, we think, the correct answer to it was to be reached through an investigation of the facts as they existed on and before February 28. The learned trial court, properly as we have held, received the evidence that tended to develop these facts, and fairly submitted it to the jury. But the plaintiffs were permitted to go further.

As early as April, 1905, before suit was brought, the plaintiffs were notified that all of the companies interested, including the defendant, had taken the position that the failure to file proofs of loss had discharged all liability. The actions were then instituted. While they were pending and awaiting trial, Mr. Wright, the adjuster of two of the companies, wrote to his local counsel at Indiana to arrange for a meeting between him and Mr. Hess, one of the plaintiffs. In his letter, which was read to the jury, he said, inter alia, “Of course you must arrange that the proposed proceedings shall not waive any of our rights, and they will not, as I understand, if taken with a view to effect a compromise and avoid litigation.” The meeting occurred and, according to the testimony of the plaintiff, Hess, admitted under objection and exception, they figured over the entire loss, to be borne by all of the companies, which Wright said “we will pay,” and promised to come back the next week with the money. He never came and died before the trial.

The learned trial court, in answer to defendant’s objection to this testimony, said: “As we view it, the testimony proposed is only admissible for the purpose of showing a waiver of the proofs of loss by the companies which Mr. Wright represented, the Scottish Unión and Hanover,” and for this purpose it was admitted.

It must be apparent, we think, that this evidence would not amount to “an express agreement to revivify the contract,” nor did it tend to show “a change of position by the insured, to his disadvantage,” brought about by the conduct of the company after February 28, 1905. Of course, it will be conceded that the failure of the plaintiffs to file their proofs on or before February 28, could, in no possible way, have been induced or brought about, by what Mr. Wright did many months after-wards.

We are therefore unable to see how the testimony was relevant to the real issue in controversy, and as we cannot say the consideration of it by the jury did not affect or influence their finding on the question properly submitted, we must sustain the third assignment and send the case back to be retried.

Judgment reversed and a venire facias de novo awarded.


author: Orlady, J.,

text:
    Commonwealth v. Dunmire.

      Criminal law — Assault and battery — Aggravated assault and battery.

    1. An information charging that the defendant did “beat, wound and ill treat the prosecutor,” and an indictment based thereon, charging that the defendant did commit an assault on the prosecutor, and “did strike, beat and ill treat,” him does not charge an aggravated assault within the meaning of sec. 98 of the Act of March 31, 1860, P. L. 382. In such a case the use of the word “wound” does not of itself raise the offense charged to the grade of aggravated assault and battery, and it may be treated and rejected as surplusage. In order to support a conviction for aggravated assault, there must be an act upon which aggravation supervenes and with which it is in some way connected.
    2. Under the local Acts of May 1, 1861, P. L. 682, April 11, 1868, P. L. 859, and April 10, 1873, P. L. 699, relating to Clarion county, where a person is indicted for an assault based upon an information charging beating and wounding, and the defendant is convicted in the quarter sessions of assault and battery, the prosecutor may not be sentenced to pay the costs of the prosecutor and other witnesses for the commonwealth.
    Argued May 6, 1908.
    Appeal, No. 211, April T., 1908, by E. R. Groves, from judgment of Q. S. Clarion Co., Dec. T., 1907, No. 5, on verdict of guilty of assault and battery in case of Commonwealth v. Sarah Dunmire.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for assault and battery.
    The opinion of the Superior Court states the case.

      Error assigned was the sentence imposing the costs upon the prosecutor.

      George F. Whitmer, with him G. G. Sloan, for appellant.
    The word “wound” in the information and the common-law indictment for assault and battery is associated with the words “beat” and “illtreat,” which means a hurt by violence of some kind, and the word “wound” is then used in its popular sense: State v. Owen, 5 No. Car. 452; State v. Patza, 3 La. Ann. 512.
    February 26,1909:
    No appearance nor paper-book for appellee.
   Opinion by

Orlady, J.,

The information under which the defendant was arrested, charged that on two days named therein she did “beat, wound and illtreat, and other wrongs to him then and there did.” The indictment which contains but one count, charges that the defendant “ did commit an assault and him, the said E. R. Groves, did strike, beat and illtreat and other wrongs to him, the said E. R. Groves, then and there did.”

The case was disposed of under local acts of assembly. By the Act of May 1, 1861, P. L. 682, it is provided that justices of the peace in Erie and Union counties are authorized to hold monthly courts, with jurisdiction to hear and determine, in the manner therein set out, the several offenses and misdemeanors mentioned in a number of the sections of the Act of March 31, 1860, P. L. 382, amongst which is the ninety-seventh section providing for the sentence to be imposed on any person convicted of assault and battery or of an assault. The provisions of the act were subsequently extended to the county of Clarion by the Act of April 10, 1873, P. L. 699.

The defendant entered into recognizance after her arrest, for her appearance at the next court of quarter sessions, where after a trial and conviction she was sentenced to pay a fine of $25.00 and costs of prosecution, and the prosecutor was sentenced to pay the costs of the prosecutor and other witnesses for the commonwealth, to give security, etc.

The Act of April 11, 1868, P. L. 859, supplementary to the act of May 1,1861, provides: “If the prosecutor in any criminal proceeding before a justice of the peace shall, in the information made before the justice charge the defendant with any crime or misdemeanor not triable before a justice and a jury of six under the provisions of said act, and the defendant shall be required to answer the charge in the court of quarter sessions of the county, and shall there be convicted only of an offense triable before a justice of the peace and a jury of six, the defendant shall not be liable to pay the costs of the prosecutor or other witnesses for the commonwealth, but the same shall be paid by the prosecutor in all cases of conviction after the passage of this act, and he shall be sentenced by the court to pay the same: Provided, that if the president judge of the court trying the cause shall certify that the prosecutor had good cause to believe at the time he made the information that an offense not triable before a justice and a jury of six had been committed by the defendant or defendants as alleged in the information, then and in that case the prosecutor shall have his costs taxed and paid as if this act had not been passed.”

It is urged by the prosecutor that because the information charged that the defendant did beat, wound and illtreat him, the indictment should have been framed and the conviction should have been had under the ninety-eighth section of the penal code, which defines an aggravated assault. The definition of this higher offense is so clearly set out in the statute, that its meaning cannot be misunderstood, viz.: “If any person shall unlawfully and maliciously inflict upon another person, either with or without any weapon or instrument, any greivous bodily harm or unlawfully cut, stab or wound any other person, every such person shall be guilty of a misdemeanor,” etc.

Neither in the information nor in the indictment is there set out an offense of the gravity of the one mentioned in the ninety-eighth section, and over an offense as therein defined, the justice’s court and jury of six did not have jurisdiction. The use of the word “wound” did not of itself raise the offense charged to the grade of aggravated assault and battery and may be treated and rejected as surplusage.

An essential description and obligation cannot of course be rejected as surplusage, but the word “wound” was not necessary to the definition of assault and battery, nor would it of itself, in its relation to the other words used, change the offense to one of another grade, and particularly to that of aggravated assault. The question of merger does not arise, for the reason that the offenses defined as assault, assault and battery and-aggravated assault are each a misdemeanor: Commonwealth v. Delany, 1 Grant, 224; Scott v. Commonwealth, 6 Sergeant & Rawle, 224; Hartmann v. Commonwealth, 5 Pa. 60; 12 Cyc. 133.

In order to support a conviction for aggravated assault there must be an act upon which aggravation supervenes, and with which it is in some way connected: 3 Cyc. 1026. The purpose of this special legislation was to expedite the disposition of petty cases and to prevent delay and costs, and in the furtherance of this it has resulted in great good. In this particular case, after a full consideration by the court, it was decided to be a case (assault and battery) properly triable before a jury of six, and in this we concur. The information does not charge that the defendant did unlawfully wound the prosecutor.

The president judge refused to certify that the prosecutor had good cause to believe at the time he made the information, that an offense not triable before a justice and a jury of six had been committed, and imposed the costs of the prosecutor and other witnesses for the commonwealth” on the prosecutor.

The defendant did not “ signify her determination to be tried by a jury of six, before the justice,” and is not complaining of her conviction in the court. This appeal is by the prosecutor, and the provision in the act giving the defendant the right to be tried by a jury of six, before the justice, does not apply to or affect him.

The assignment'of error is sustained, and the judgment of the court below is reversed and the appellant is discharged.


text:
    Hess v. Hartford Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Proofs of loss — Waiver—Pleading.
    1. Where by the terms of a fire insurance policy the insurance company has the right, not only to have the formal proofs of loss, or statement therein called for, but also the right to demand the production or examination of all books of accounts, bills, invoices and other vouchers, such rights are separate and distinct and are not inconsistent with, nor repugnant to, each other. It cannot therefore be said that a mere naked insistence on the one can be regarded as, in any sense, a waiver of the other; but if the company exercises the one right in such a manner as to reasonably induce the assured to believe that it would not insist upon the other, it ought not to complain if the assured acts upon the belief and on that account fails to follow strictly the line and letter of the policy. And this should be none the less true where both rights exist for one common object, viz.: the ascertainment of the facts showing a liability on the part of the company, and the cash value of the property destroyed.
    2. Where a stock of goods is destroyed by fire and the bills, vouchers and receipts of the owner are also destroyed, if the insurance adjusters, meeting to adjust the loss, invite the assured to their conference, secure from him all of the information to be found in his bank book and stock books which were not burned, and then being unable to agree with him as to amount, require him to procure duplicate bills of all stock purchased by him during a considerable period of time, and then adjourn to meet when such duplicates shall have been secured to complete the adjustment, a finding by the jury that the insurance company has waived the filing of formal proofs of loss will not be disturbed. ‘
    3. In an action upon a policy of fire insurance it is not necessary that the plaintiff in order to plead a valid and subsisting contract of insurance should aver in his statement that the defendant had waived the right to demand proof of loss.
    4. If there is a waiver on the part of the insurance company by which the assured is relieved of the obligation to file proofs of loss, such waiver is complete and operates upon every provision of the policy affected by the primary one on that subject.
    Argued May 5,1909.
    Appeal, No. 218, April T., 1908, by defendant, from judgment of C. P. Indiana Co., Sept. T., 1905, No. 131, on verdict for plaintiffs, in case of R. L. Hess and B. M. Smith, trading as the Gipsy Mercantile Company, v. Hartford Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Crawford, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the defendant presented the following point: •
    4. The plaintiffs having neglected to set out any waiver in their statements of claims and having claim in their amended statements that the defendant companies waived that condition in the policies of fire insurance requiring proofs of loss to be filed within sixty days of the date of fire, no evidence of waiver of filing proofs as condition precedent to the action is admissible, and no such evidence having been offered, and the plaintiffs not having filed any proofs at all, these actions are premature, and the verdict should be for. the defendant. Answer: This point is refused. [2]
    Verdict and judgment for plaintiff for 1800. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant, and (2) answer to defendant’s point, quoted above.

      W. K. Jennings, with him D. C. Jennings and J. W. Mack, for appellants.
    The adjusters were without power to bind the company by a waiver: Beddall v. Ins. Co., 28 Pa. Superior Ct. 600; Desilver v. Ins. Co., 38 Pa. 130; Seibel v. Ins. Co., 197 Pa. 106; Langan v. Ins. Co., 162 Pa. 357.
    The clause requiring the furnishing of proofs is binding as a condition precedent unless waived: Gould v. Dwelling House Ins. Co., 134 Pa. 570; Hottner v. Ins. Co., 31 Pa. Superior Ct. 461.

      John L. Getty, with him M. C. Watson, for appellees.
    The appellants by their action and conduct and request for duplicate bills at the meeting on January 5, 1905, waived that provision in the policies requiring proofs of loss to be filed within sixty days from the time of the fire: McFarland v. Ins. Co., 134 Pa. 590; Mix v. Ins. Co., 169 Pa. 639; Welsh v. London Assurance Corporation, 151 Pa. 607; Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Lebanon Mut. Ins. Co. v. Erb, 112 Pa. 149; Snowden v. Ins. Co., 122 Pa. 502; Niagara Fire Ins. Co. v. Miller, 120 Pa. 504; Hottner v. Fire Ins. Co., 31 Pa. Superior Ct. 463; Coleman v. Insurance Co., 177 Pa. 239; Bonnert v. Pa. Ins. Co., 129 Pa. 558; Carey v. Allemania Fire Ins. Co., 171 Pa. 204.
    The plaintiffs were not precluded by the pleadings from offering evidence of waiver of filing proofs as conditions precedent to the action: Lebanon Mut. Ins. Co. v. Erb, 112 Pa. 149.

      February 26, 1909:
   Opinion by

Head, J.,

The plaintiffs, who were engaged in the mercantile business, had insured their stock of goods in a number of insurance companies. All of the policies, which were of standard form, were issued by the local agency of S. F. Clark & Company, at Glen Campbell, Pa. A fire occurred on the night of December 29, 1904, which destroyed the stock of goods insured and burned up the bills and other papers kept on file in the store. The books of the firm which were in a fireproof safe were not injured. Notice of the fire was promptly given by the plaintiffs to the local agents and by them to the companies. In response to the notice the adjusters of they different companies met at Glen Campbell on January 5, 1905. The plaintiffs were summoned to the conference and, upon request, produced their store books, bank books and all papers and memoranda in their possession that would aid in the ascertainment of the amount of stock in the store at the time of the fire and the adjustment of the loss resulting therefrom. After securing all of the information that could be furnished by the insured and making a lengthy investigation of all of the data before them, the adjusters announced the result of their work, according to the testimony of their local agent, Mr. Clark, as follows: “They called Mr. Hess then and Mr. Wright said to him that they had gone over the matter very carefully and could not find that he had the amount of loss there which the insurance gave; however, they did not want to make him any mean offer, but said they could not find that there was more than 13,500,1 believe, or $4,000 of a loss from the data he had furnished them. Mr. Hess said he had more loss than that. They said they could not see it. They said that they saw there was only one way to adjust the thing and that would be for him to write to all the houses they dealt with and obtain a complete statement, showing all debits and all credits from the date of their consolidation up to the time of the fire.” After some discussion as to the labor and difficulty of securing a complete set of duplicate bills and the time that would be consumed, the witness goes on: “Then they told Mr. Hess to notify S. F. Clark & Company as soon as he got this information, but not to notify them or bother them anything about it until he got this information and was ready to settle with them and then to notify us and we would arrange a meeting at Altoona. . . . Q. Then they were to meet at Altoona? A. Yes, sir. Q. For what purpose? A. To adjust this loss.”

When early in March the plaintiffs had Succeeded in obtaining the required bills and gave notice of their readiness to meet and finish the adjustment, as agreed on, the adjusters declined to proceed further claiming the liability of the companies had been extinguished by the failure of the insured to file, within sixty days after the fire, the formal written proofs of loss required by the policies. Suit was then brought. Upon the trial the learned court submitted to the jury the testimony above quoted, with more of like import produced by the plaintiffs, permitting them to find therefrom that the defendant company had waived a strict compliance with the provision of the policy requiring formal proofs of loss, and by the conduct of its adjuster, had misled the plaintiffs into the belief they were doing all that could or would be demanded of them in promoting an amicable adjustment of the loss. The submission of this testimony and the refusal of the court to affirm a point for binding instructions constitute the first assignment of error.

By the very terms of the policy the insurance company had the right not only to have the formal proofs of loss or statement therein called for, but also the right to demand the production, for examination, of all books of account, bills, invoices and other vouchers. These rights were separate and distinct; they were not inconsistent with or repugnant to each other. It cannot, therefore, be said that a mere naked insistence on the one could be regarded as, in any sense, a waiver of the other. But it must also be conceded that if the company should exercise the one right in such a manner as to reasonably induce the assured to believe it would not insist upon the other, it ought not to complain if they acted upon the belief and on that account failed to follow strictly the line and letter of the policy. And this should be none the less true where both rights exist for one common object, viz.: the ascertainment of the facts showing a liability on the part of the company, and the cash value of the property destroyed.

The proofs of loss contemplated by the policy are, in substance, but a detailed, ex parte statement by the assured of these facts, so far as they are within his knowledge. Upon the receipt of the preliminary notice of a fire and the consequent knowledge that a claim against it exists, an insurance company may, if it choose, await the receipt of the formal claim of the assured as provided for in the policy.- Until then it is under no obligation to do anything. It is not required to take the initiative.

But it certainly may, as insurance companies so often and so laudably do, promptly undertake to ascertain for itself the character and extent of the loss, with the object in view of making the insurance money an indemnity in fact as well as name. An experienced adjuster can easily and quickly learn, in a personal examination of the assured, all of value the company could get from the more formal but still ex parte statement of the latter: The information thus obtained can be either weakened or strengthened by an examination of the books, papers, vouchers, etc., in the possession of the assured. Thus the company is in a position to secure for itself, in a rapid and informal way, all that the more technical provisions of the policy were intended to bring to it if it chose to stand aloof and assume an adversary attitude towards the assured.

In determining the character and legal consequences of the line of conduct pursued by the special adjuster of the company in this case, we have but to apply to the facts before us the principles enunciated in Snowden v. Ins. Co., 122 Pa. 502; Gould v. Ins. Co., 134 Pa. 570, and McFarland v. Ins. Co., 134 Pa. 590.

When the plaintiffs were summoned to the conference of the adjusters at Glen Campbell and asked to disclose such information as they had concerning the fire; when they were further requested to there produce their store books, bank books, etc., and when the production of these was followed by a lengthy investigation of what they showed as to the probable value of the stock of goods on hand; and when, at the end of the investigation, the adjusters announced that, from the data before them, they were unable to find that the loss had exceeded $4,000, were the plaintiffs, as reasonable men, unwarranted in assuming that the object of the entire proceeding was, in good faith, to ascertain the extent of the loss with a view to its payment?

Had the conclusion there reached by the adjusters been accepted by the assured, is there any reason in this record to doubt that the adjustment of the loss would have been completed on the spot? Was it not fairly apparent that the only obstacle in the way of the speedy adjustment both parties seemed to desire, was the extent of the claim made by the assured? When the companies’ officers further declared that the adjustment could not proceed until the plaintiffs would obtain duplicate copies of the bills of all goods purchased by them during the eleven months of their business, but that when such bills had been procured and the plaintiffs were thus “ ready to settle,” they would, on notice, meet in Altoona, “to adjust this loss;” again, were not the plaintiffs justified, as reasonable men, in assuming that when they had expended the time and energy necessary to do all that seemed to be required, they would not then be met with their failure to have done something else, the necessity for which appeared to have ceased to exist?

These are not questions of law to be answered by a court, but of fact to be submitted to a jury. The testimony of the plaintiffs on these questions was fairly submitted to the jury, and, although not by any means uncontradicted, was accepted by them. The resulting conclusion, that the defendant had waived its right to insist upon the filing of formal proofs of loss, seems to us to rest upon the same solid foundation as in the cases cited. As was said in Roe v. Ins. Co., 149 Pa. 94, followed in Hower v. Ins. Co., 9 Pa. Superior Ct. 153, “As a rule, the law does not require vain things, and technical proofs could but restate that of which the company was already informed.” And it may not be inappropriate to here quote the following language from the opinion of Chief Justice Sterrett in McCormick v. Ins. Co., 163 Pa. 184: “Every consideration of public policy demands that insurance companies should be required to deal with their customers with entire frankness and fairness. They may refuse to pay, without specifying any ground, and insist upon any available ground, but when they plant themselves upon a specific defense, and so notify the assured, they should not be permitted to retract after the latter has acted upon their position as announced, and incurred expenses in consequence of it.”

We are therefore unable to say the court was in error in refusing binding instructions and the first assignment of error must be dismissed.

The second assignment raises the question that the plaintiffs could not recover because their statement contained no averment that the company had waived its right to demand proofs of loss, and hence no testimony on that subject could properly be offered. The pleadings are not printed in the paper-book and we have had no opportunity to examine them.

The plaintiffs sued on the contract of insurance evidenced by the policy. The requirement that proofs of loss be filed was no part of that primary contract. “Proofs of loss are acts to be done by the assured for the information of the insurer, and the stipulation for them, as said by Strong, J., in Inland Ins., etc., Co. v. Stauffer, 33 Pa. 397, is, 'at most a condition precedent, not to the undertaking of the insurer, but to the right of action of the insured:' ” Gould v. Ins. Co., 134 Pa. 570. It was not necessary therefore that the plaintiffs, in order to plead a valid and subsisting contract of insurance, should aver, in their statement, that the defendant had waived the right to demand proofs of loss. If the company undertook to defend on that ground, the averment of a waiver would properly come by way of replication. If, however, the averment appeared in the amended statement, then the order in which proof would be admitted became a question within the discretion of the trial court. The jury having found, from evidence sufficient to sustain such finding, that the company had waived its right under the provision of the policy requiring proofs of loss, that provision practically disappeared from the contract, and other provisions would necessarily be construed as if the first had never been any part of the contract. In other words, if there was a waiver by which the assured were relieved from the obligation to file proofs of loss at all, that waiver was complete and operated upon every provision of the policy affected by the primary one on that subject: Lebanon Mutual Ins. Co. v. Erb, 112 Pa. 149. The learned court was therefore right in refusing the point and this assignment is dismissed.

The only remaining assignment applies exclusively to the case against The Hanover Fire Insurance Company, argued with the one now before us, and we will dispose of it in a separate opinion.

Judgment affirmed.


author: Rice, P. J.,

text:
    Truby v. American Natural Gas Company, Appellant.

      Corporations — Pipe line companies — Unlawful entry on land — Trespass —Pleading■—Anticipatory replication — Damages.
    1. Where in an action of trespass against a pipe line company, the plaintiff avers in his statement that the defendant wrongfully entered upon the plaintiff’s land and laid a pipe line against the plaintiff’s will, and the defendant sets up a right of way agreement with the plaintiff, giving the defendant a right to enter upon the land and lay a pipe line, the plaintiff may in rebuttal show that the pipe line actually laid was in a substantially different location than that mentioned in the agreement. The plaintiff in such a case is not bound to anticipate a defense of this character and answer it, in his pleadings.
    2. A permanent injury to land caused by the laying of a pipe line entitles the owner of the land to recover damages measured by the resulting depreciation in the value of the property.
    3. Where a landowner has knowledge that a pipe line company is laying a pipe line on his land, without having tendered him a bond, or made any effort with him to agree as to damages, he is not thereafter estopped from suing the company in trespass for damages for the permanent injuries to his property. In such a case the owner has a right to waive his constitutional and statutory right to security for his damages, and make claim in his action of trespass for permanent injuries to his property as if the company had given such security.
    Argued May 11, 1908.
    Appeal, No. 223, April T., 1908, by defendant, from judgment of C. P. Armstrong-Co., March T., 1907, No. 219, on verdict for plaintiff in case of W. H. Truby v. American Natural Gas Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Trespass to recover damages for injuries to land.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for- $519. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Wm. A. Griffith, of Griffith & Mitchell, for appellant.
    The settled law in a case where no effort has been made to agree with the owner, or to condemn by court proceedings, but where the entry is made without any authority whatever, and the owner of the land stands by and sees the expenditure by the corporation of large sums of money in the construction of its railroad or pipe line, or whatever part of its system in use as a quasi-public corporation, the owner cannot treat the entry so made as a trespass upon the ground that it was not preceded by payment or security for the compensation payable to him for the land taken. This is decided in Oliver et al. v. Railway Company, 131 Pa. 408, in which case we find it stated: “He does not, however, lose his right to compensation and can proceed under the statute to have his damages assessed as well after as before the construction of the road:” Neil v. Gas Co., 131 Pa. 466; Davis v. Pipe Lines, 34 Pa. Superior Ct. 438.
    We submit that the testimony offered by the plaintiff in chief and the measure of damage which he attempted to prove by his evidence, do not substantiate the allegations contained in the declaration. The act of 1887 has not in any way affected our rules of pleading, but has only effected a combination of various actions under one name, as was well set forth in the case of Busch v. Calhoun, 14 Pa. Superior Ct. 578. We submit that as plaintiff has declared in trespass q. c. f. and his proof in chief and rebuttal combine^ shows that his damages, if any, result from a breach of contract on the part of defendant, there is a material variance and that he should have declared in case to maintain his action: Boults v. Mitchell, 15 Pa. 371; Edelman v. Yeakel, 27 Pa. 26.

      J. W. King and M. F. Leason, for appellee.
    We do not understand it to be the practice that the plaintiff’s statement must contain in detail what damages, if any, he has sustained, but in this case it did. If such detailed statement is deemed by the defendant necessary, he can rule the plaintiff to specify particularly his various items of damages, and thereby gain such additional information as the court below may require. Nothing of the kind was done in this case by the appellant. It did not go to trial to answer such evidence of damage sustained as might be proved. In a sense, the continued unlawful occupancy by the appellant of appellee’s land, was a continued trespass, and the established rule in instructing the jury for such trespass in assessing damages was followed by the learned court below in his charge: Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 148; P. & L. E. R. R. Co. v. Jones, 111 Pa. 204; Duffield v. Rosenzweig, 144 Pa. 520; McClelland v. Schwerd, 32 Pa. Superior Ct. 313; Linton v. Water Co., 29 Pa. Superior Ct. 172.
    February 26, 1909:
    No consent was given by the plaintiff to the defendant to enter and occupy his land as was done. The entry might have been lawful, but the abuse of the lawful entry made trespass the remedy for the redress of the wrong: Edelman v. Yeakel, 27 Pa. 26.
   Opinion by

Rice, P. J.,

We cannot agree with the defendant’s counsel that the plaintiff was not entitled to recover under the pleadings. He brought suit in trespass and alleged in his statement of claim that the defendant with force and arms entered upon his land, describing it, and laid a pipe line through and in the same, against the will of the plaintiff, which it continued to maintain to the date of suit brought. The defendant pleaded not guilty. On the trial of the issue plaintiff adduced proof of the entry, the laying and maintenance of the pipe line, and the damages, as for a permanent injury, resulting therefrom, and then rested. In defense the defendant introduced a writing called a right of way contract, whereby the plaintiff granted to the defendant the right to lay, and from time to time to replace, maintain and remove a pipe line of any size not exceeding six inches through the plaintiff’s land, being the land described in the statement, and agreed to accept fifty cents per rod as liquidated damages, and the defendant agreed on its part to keep the line within three feet of a certain line fence. It is argued that as by this agreement the defendant had the right to enter upon the plaintiff’s land, an action quare clausum fregit, which it is claimed the plaintiff’s statement shows this to be, could not be maintained for an abuse of the right. In support of this proposition counsel cite Boults v. Mitchell, 15 Pa. 371, and Edelman v. Yeakel, 27 Pa. 26. These cases, properly understood, would scarcely sustain a plea demurred to that the defendant had been granted the right by the owner to enter upon and occupy a particular part of the owner’s land without alleging further that the entry and occupancy were upon that particular part, or upon so much only of the adjoining land as was essential to the enjoyment of the right. Moreover, it was held in the later case of Kissecker v. Monn, 36 Pa. 313, that a person who had a license to enter on land of another, and to take down a gate to enable him to enter, but neglected to restore it to its place, in consequence of which his swine were enabled to trespass on the plaintiff’s land, was liable in trespass quare clausum fregit for the damages thereby occasioned. Again, in Shiffer v. Broadhead, 126 Pa. 260, which was an action of trespass under the Act of March 29, 1824, P. L. 152, for cutting timber trees, the defendant set up in defense a contract which gave him the right to enter plaintiff’s land and cut certain kinds and sizes of trees. The referee held that as the defendant’s right of entry was not determined, the plaintiff could not recover for cutting other trees upon the tract in this form of action. This was held to be error, Mr. Justice Sterrett saying: “It is true they had a right of entry on the premises at the time the cutting was done, but it was not a right of entry for all purposes. It was,solely for the purpose of cutting and removing such trees as, under the agreement, they had a right to cut, and nothing else. In cutting and removing other trees which they had no right, and must have known they had no right to cut, they became trespassers as to such unauthorized and illegal acts, and as such they were liable in this action.” The same was held in Irwin v. Patchen, 164 Pa. 51, notwithstanding the fact that the case of Boults v. Mitchell, 15 Pa. 371, supra, was pressed upon the attention of the court as authority for the proposition that the defendant was not a trespasser. So here,'the defendant's right to enter upon and occupy was restricted by the very terms of the agreement to a certain purpose and a certain location. The defendant had no ground for presuming that if it introduced in evidence this contract as a defense, the plaintiff would not be permitted to show that it was no defense, because the pipe line was laid in a substantially different location. The plaintiff was not bound to anticipate this defense and answer it in his pleadings.

The remaining question is as to the measure of damages. It is apparent that the injury complained of is not of a temporary but of a permanent nature. This is not seriously questioned by the defendant's counsel. There are numerous cases in which it has been held that where there is a permanent injury to real estate the plaintiff is entitled to recover damages measured by the resulting depreciation in the value of the property. Most of these were cited and reviewed by Mr. Justice Potter in Rabe v. Shoenberger Coal Co., 213 Pa. 252. See also Carpenter v. Lancaster, 212 Pa. 581; Linton v. Armstrong Water Co., 29 Pa. Superior Ct. 172, and Becker v. Lebanon, etc., Ry. Co., 30 Pa. Superior Ct. 546. The case of Hankey v. Philadelphia Co., 5 Pa. Superior Ct. 148, is directly in point. There a company having the right of eminent domain, as this company has, without tender of bond or effort to agree as to damages, laid a gas pipe and erected a telephone line along a public road through the land of the plaintiff, who knew of the work and not only made no active effort to stop it, but actually assisted in it. It was held that he was estopped from depriving the defendant of the easement it had acquired, though entitled to compensation through a common-law action for the injuries he had sustained, including those resulting from a permanent occupancy of his land. This case was not overruled nor was its authority questioned in the recent case of Davis v. Southwest Pipe Lines, 34 Pa. Superior Ct. 438. On the contrary, it was distinctly declared in the opinion of the Supreme Court upon appeal from our decision, not yet reported, that what was held in Hankey v. Philadelphia Co. is the undoubted law. It is apparent, however, that it is not an invariable rule to be applied wherever a company having the power of eminent domain has entered upon private land and occupied the same for the purposes of its charter. For example, it does not apply to a case where the company has entered upon private land for such purpose without the knowledge of the owner. In such a case the owner may bring trespass and recover damages to the time of suit brought, and then follow this by successive actions of trespass. In the Davis case it was held that having established his right at law he could maintain a bill in equity to compel removal of the pipe line, unless within a specified time the company gave bond to secure the damages consequent upon its taking the land of the plaintiff. The present case differs from that in this that the plaintiff knew of the defendant’s trespass, and it is distinguishable from the Hankey case in that it does not appear that he actually assisted in the work. Whether in view of these distinguishing features he could or could not have maintained a bill to compel removal of the pipe line, or was or was not estopped to enforce his right to have it removed by the indirect method of successive actions of trespass, need not be positively decided. He certainly had a right to waive his constitutional and statutory right to security for his damages and make claim in his action of trespass for permanent injuries to his property as if the defendant had given such security. This conclusion is amply supported by the opinion of Mr. Justice Brown in the Davis case, and by many of the decisions cited in Rabe v. Shoenberger Coal Co., 213 Pa. 252.

We have discussed the two questions which are alluded to in the appellant’s statement of the questions involved and in the argument of its learned counsel. We deem it unnecessary, therefore, to comment upon the several assignments of error, further than to say that we discover no reversible error in any of the rulings there complained of.

The judgment is affirmed.


text:
    Clark v. American Natural Gas Company, Appellant.
    February 26, 1909:
    Argued May 11, 1908.
    Appeal, No. 224, April T., 1908, by defendant, from judgment of C. P. Armstrong Co., March T., 1907, No. 220, on verdict for plaintiff in case of Jacob W. Clark v. American Natural Gas Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

The questions raised on this appeal, as set forth in the statement of the questions involved and in the brief of appellant’s argument, are the same as those passed upon in the case of Truby against the same defendant, ante, p. 166. For the reasons there given the judgment is affirmed.


text:
    Bentley v. Rochester Planing Mill Company, Appellant.

      Master and servant — Contributory negligence — Planing mill.

    In an action by an employee against his employer, a planing mill company, to recover damages for personal injuries, it appeared that the plaintiff, a man of mature years, who had been in the service of the defendant for several years, was foreman of the planing mill, machine hands and carpenters, with the right to hire and discharge men, and with general control over his'department. On the main floor of the mill there was a saw intended for a special use. It was operated by a belt from the basement and could be detached from the general system of power by throwing the belt in the basement. When the saw was to be used it was necessary for someone to go to the basement and restore the broken connection. On the day of the accident a superior officer of the plaintiff told him that he wished to have some lumber sawed up by the special saw. He said: “When you have time, I wish you would do that. ” Plaintiff said: “ If I have to do it, I might as well do it now as at any other time.” Plaintiff then proceeded to slacken the speed of the running machinery, which he could do by an apparatus on the first floor. After this he went down into the basement, which was separate from his own department and apart from his control, and which he did not often visit, and while attempting to adjust the belt of the special saw was caught in his clothing by a set screw projecting from the shaft revolving near the belt, and was injured. Held, that the plaintiff was not entitled to recover, as the proximate cause of the injury was his own lack of care.
    February 26, 1909:
    Argued May 12, 1908.
    Appeal, No. 48, April T., 1908, by defendant, from judgment of C. P. Beaver Co., June T., 1906, No. 26, on verdict for plaintiff in case of William M. Bentley v. Rochester Planing Mill Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,500. Defendant appealed.

      Error assigned was in refusing binding instructions.

      Forest G. Moorhead and Edwin S. Weyand, for appellant,
    cited: Delaware River Iron-Ship Building Co. v. Nuttall, 119 Pa. 149; Andersen v. Berlin Mills Co., 88 Fed. Repr. 944; Roonty v. Sewall & Day Cordage Co., 161 Mass. 153 (36 N. E. Repr. 789); Demers v. Marshall, 178 Mass. 9. (59 N. E. Repr. 454).

      James L. Hogan, with him John M. Buchanan, John B. Chapman and Walter P. Rainbow, for appellee.
   Opinion by

Head, J.,

Although, as to some features of this case, the testimony developed at the trial was conflicting, there are certain facts which appear so plainly, even from the evidence delivered by the plaintiff himself, that they may be fairly said to be undisputed. It is from a consideration of these facts alone we must determine whether or not the learned trial judge fell into error in submitting the whole case, to the jury and entering judgment for the plaintiff on the verdict.

The main floor of the defendant’s mill was occupied by the machinery that is characteristic of that particular kind of a plant, planers, saws, etc.; whilst the basement accommodated the general machinery intended to develop and supply power. Upon the main floor stood a saw, designed for a special use, which was so constructed that, when not in use, the power operating it could be detached from the general system by throwing a belt in the basement. When the saw was to be used it was necessary for someone to go to the basement and restore the broken connection.

At the time of his injury the plaintiff was a man of mature years. He had spent most of his active life working in and about planing mills and had acquired knowledge and skill in the use of the machinery operated in such plants. He had worked for the defendant company, at two separate periods, aggregating several years. He had risen to a position of authority and responsibility in its service. He says he was “foreman of the planing mill, machine hands and carpenters.” That he had the right to hire and discharge men — at least those who worked the machinery on the main floor — and designate and direct their work, he does not deny. Had it become his duty, in hiring a new man, to explain to him the nature of any of the machines, or the danger that might be incurred in operating them, his competency for that purpose and the fitness of his selection by the defendant, would be established by his own testimony.

Assuming, as the plaintiff contends, that Mr. Throne was, in a general way, his superior officer — although his activities were usually confined to matters outside the mill — his own position and duties are thus defined by himself: “I was foreman; it was my place to do what I was told or to have it done, with that portion that I had anything to do with. If there was any orders came in for work, they were generally handed to me; sometimes they were handed to other people, but they generally came to me; and it was my place to hand them over to the people best suited to get that out.” It is thus apparent that he was invested with the right to use his own judgment and determine for himself in what way the “orders for work” could be best executed.

The plaintiff testifies that on the morning of the accident Mr. Throne came to him and said, “William, there is some stuff over there at the planer, which I wish you would have planed up and sawed into boards, — split. I believe he said, 'When you have time I wish you would do that.' I said: ' If I have to do it, I might as well do it now as any other time.’ And in order to do this I had to start the re-saw.” This is the plaintiff's statement of what he now alleges to have been an order from his superior officer that sent him into a place, to wit: the basement, where he was obliged to encounter a danger unknown to him, but which was or should have been known to his superior. We are unable to see how such a conclusion can be justly drawn from the premises. There was no order to the plaintiff that he should himself even operate the saw, which was admittedly in the department of the mill over which he exercised authority, much less was there any direction to him to go into the basement, which, with the machinery in it, he now alleges was outside his sphere of control. After admitting that he could have designated anyone in the mill to do the sawing instead of doing it himself, the plaintiff was asked, “Q. And you of your own accord, in sawing that, went to the basement and put on the belt?” to which he replied, “A. Yes, sir.” Thus it appears the act of the plaintiff in going to the basement to start the saw was the result of the exercise of his own judgment and discretion and not of an order or command from his superior officer.

Again, the plaintiff's testimony shows that the speed of the running machinery could be controlled at will by an apparatus, called “a tightener,” which was “upon the first floor.” He does not undertake to say he was not perfectly familiar with the use and effect of this, but states that "when you want to slow or stop the machinery, you pull the tightener back.” Before going to the basement he undertook to use this plain precaution for his own safety. He admits he could thus have stopped the machinery entirely until he had gone below and adjusted the belt that would give power to operate the saw. This would have made his work with the belt absolutely free from danger. There was nothing to prevent his doing so except his own conclusion that when he had “slackened the shaft down considerably,” he had done all that was necessary for his own safety.

In attempting to adjust the belt his clothing was caught by a set screw in the shaft revolving near the belt and thus the accident occurred. That such a shaft would revolve in a cap or collar and be held there by a set screw, the plaintiff well knew because he explained to the jury the reason for such construction. Let it be conceded, as he contends, that where a shaft is located as this one was, the set screw should be countersunk, or if projecting should be guarded so that■ accidental contact with it would be prevented, what conclusion follows?

At the trial in court the plaintiff produced a model, of the portions of the machinery involved in the accident, to show to the jury how the injury occurred. He had never seen the original since the day he was hurt. The model was made by himself from memory. Whilst he did not claim that it was a precise and accurate reproduction, he alleged it was a "fair representation of that machinery.” Not many men could furnish such a complete demonstration of their knowledge and skill concerning the machinery with which they worked. In speaking of his experience, in that part of the mill, prior to the accident, he said: “I went down and put the belt on once before that; and I had walked through that place a time or two I suppose. I took no notice to it when I went there and I didn’t go frequently. I had no business there.”

But on the subject of his previous knowledge there is some conflict of testimony. We therefore assume the verdict has established he did not know the conditions that would confront him in the basement. Why, then, did he go there? Not, as we have already seen, because of any order from his superior. He could have remained where his own knowledge and experience protected him; he could have sent another. He did neither. Having undertaken, as the result of his own judgment, to go, he must have realized he could not prudently attempt the work he wished to perform with the machinery running at normal speed. The means for stopping it temporarily were at his hand. The evidence shows no rule or regulation prohibiting his use of such means. Of course if he slackened the speed to the point of safety his purpose would have been accomplished, and this he attempted to do. He relied on his own judgment and experience to determine when he had reached that point. That he made an unfortunate error in thus stopping short of what was manifestly safe, the event that followed establishes.

The principles that control what are commonly called “negligence cases” are few and have been many times declared. In such cases, more perhaps than in any other branch of the law, it is true that each case stands upon its own facts. Looking, then, at the material facts of this case, in a light as favorable to the plaintiff as he is able to state them, we are driven to the conclusion that the proximate cause of his injury was his lack of that due regard for his own safety which the law imposes on everyone who seeks its aid to recover compensation from another for the consequences of an injury. Of course, the extent of this obligation varies with the age, knowledge and experience of him on whom it rests. Unfortunately it seems to be true that those who most frequently have to face danger become, in time, oblivious or careless of its presence. When, however, injury results from such a cause, although we may deplore it, we cannot saddle its consequences upon another.

Judgment reversed.


text:
    Stewart’s Estate.

      Poor law — Acceptance of relief — :Repayment to poor district — Real estate — Decedents’ estates.

    1. Acceptance by a poor person of relief from a poor district creates no personal obligation enforceable at law against the person accepting the relief, to reimburse the poor district, in the absence of a statute imposing such obligation.
    2. While under certain statutes a poor district may reimburse itself out of a pauper’s personal property, or out of the rents and profits of his real estate, there is no statute which gives to a poor district the right to share in the distribution of the proceeds of a judicial sale of the real estate of a pauper for the payment of debts, made after the death of the pauper.

      Argued May 13, 1908.
    Appeal, No. 102, April T., 1908, by City of New Castle Poor District, from decree of O. C. Lawrence Co., March T., 1907, No. 30, dismissing exceptions to auditor’s report in Estate of Isabella Stewart, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Charles R. Davis, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.
    The court below in an opinion by Porter, P. J., dismissed the exceptions.

      Error assigned was decree dismissing the exceptions to auditor’s report.

      James A. Gardner, city solicitor, for appellant.
    The obligation incurred in this case is in the nature of a debt against the decedent’s estate: Directers of the Poor v. Nice, 161 Pa. 82.
    If the estate of the pauper is liable to pay the expenses incurred during the lifetime of the pauper as an obligation, that obligation, if not paid, is fastened on her estate: Taylor’s Estate, 10 York, 113.
    Poor directors can recover upon distribution of the pauper’s estate in the orphans’ court, for maintenance and support furnished the deceased pauper in his or her lifetime: Mumma’s Appeal, 127 Pa. 474; Taylor’s Estate, 10 York, 113; Foley’s Estate, 14 Pa. Dist. Rep. 681; Lancaster County Poor Directors v. Hartman, 9 Pa. C. C. Rep. 177.
    We are not without authority on the point that the obligation in such cases continues, and continues even as against land: Jester v. Overseers of The Poor of Jefferson Twp., 11 Pa. 540; Lower Augusta Twp. v. Northumberland County, 37 Pa. 143; Erisman v. Directors of Poor of Lancester County, 47 Pa. 513.
    The heir to the estate of Mrs. Stewart is an only son, who by the laws of this commonwealth was under obligation to take care of her; and for that reason he should not in equity take this money as against the poor district: Pitcairn’s Estate, 37 P. L. J. 184; Kolb’s Estate, 6 Pa. Dist. Rep. 543.

      February 26, 1909:

      James M. Martin, for appellees.
   Opinion by

Rice, P. J.,

The decedent was an aged woman having no income, in destitute circumstances, not able to work, but owning a small house and lot in the city of New Castle where she resided. For a time her needy condition was relieved by the charitable contributions of provisions and other supplies by a church or its members. In October, 1904, a member of the church called the attention of the director of the poor of the city to her condition, and interested him in the case. The director testified: “I went and investigated. I knew the woman, she had property but nothing to live on. I did not want to throw her out of her house as she would be wholly on the city. She had no income and was not able to work, was not able to procure a living for herself. She did not come to me originally, she has been there several times since, every other Saturday to get orders, but only three or four times personally.” Being satisfied upon investigation that she was a person needing relief, he entered her name in the poor book and furnished her relief to the extent of $1.50 per week until March, 1906. This, it is claimed and admitted by counsel, he was authorized to do, without an order of relief, by sec. 1 of the Act of June 14, 1901, P. L. 561, relating to cities of the third class. The mode of furnishing relief was by orders upon dealers for goods, which orders she either applied for to the director in person or by messenger. This went on until she borrowed from a third person $300, securing the loan by a lien upon her premises, and from that time until her death she received no relief from the city. After her death her real estate was sold under a decree of the orphans’ court for the payment of debts. Upon the settlement of her estate a small balance of the fund derived from that source remained for distribution. This appeal is from the decree of the orphans’ court awarding it to the appellee, the son and only heir of the decedent, and rejecting the claim of the city to be reimbursed for the expenses it had incurred in the support of the decedent.

It is impossible to see upon what sound legal principle it can be held that where a poor district, charged with the duty of caring for the poor, furnishes relief to one needing and entitled to it under the poor laws, and only to the extent that his needy condition requires, a personal obligation, enforceable at law, to reimburse the poor district is thereby incurred, in the absence of a statute imposing such obligation. Nor is it perceivable that in such a case a request on his part for relief carries with it an implied promise to that effect. The fund administered by the district is created for the purpose of furnishing charitable relief to certain persons, and where one within the class applies for assistance from that fund the natural and conclusive inference is, in the absence of anything else to show the contrary, that he, as well as the poor authorities, has in mind the bestowal of the charitable relief, which, under the law, it is obligatory on the latter to furnish. To imply a contract to repay would be contrary to the fact, and contrary also to the general current of decision in jurisdictions where no such obligation is created by statute: Deer Isle v. Eaton, 12 Mass. 327; Stow v. Sawyer, 85 Mass. 515; Bennington v. McGennes, 1 D. Chipm. (Vt.) 44; Benson v. Hitchcock, 37 Vt. 567; Charlestown v. Hubbard, 9 N. H. 195; Chester v. Underhill, 16 N. H. 64; Albany v. McNamara, 117 N. Y. 168; s. c., 6 L. R. A. 212; Bremer County v. Curtis, 54 Iowa, 72; Jones County v. Norton, 91 Iowa, 680.

The common-law rule has been changed in Pennsylvania by sec. 33 of the Act of June 13, 1836, P. L. 539, so far as to enable the directors of the poor of any county, and the overseers of any district, as the case may be, in which any person shall have become chargeable, to sue for and recover any real or personal estate belonging to such person, and to sell or otherwise dispose of the personal property, and to collect and receive the rents and profits of the real estate, and to apply the proceeds, or so much thereof as may be necessary, to defray the expenses incurred in the support and funeral of such person. Additional remedies have been given by later statutes, but as none of them is applicable here they need not be discussed. It may be conceded that the granted right to sue for, recover and sell, or otherwise dispose of, the poor person’s personal estate, and to appropriate the proceeds to defray the expenses incurred by the poor district, includes the right to maintain a claim in the orphans’ court for reimbursement out of the deceased pauper’s personal estate. That proposition was argued in Mumma’s Appeal, 127 Pa. 474, and while the Supreme Court did not pass upon it, it is in accordance with the decisions of the orphans’ court in that and in two or three other cases. In Directors of the Poor, etc., of Montgomery County v. Nyce, 161 Pa. 82, the point decided was this: One Malone while a charge upon the district 'and an inmate of the almshouse was bequeathed a legacy which came into the hands of his committee, Malone being at the time insane. It was held upon case stated in assumpsit, which ruling was approved on appeal, that under sec. 33 of the act of 1836 the expenses incurred by the poor authorities for his previous maintenance were recoverable from the committee. All of these cases have the support of the express provisions, properly construed, of the act relating to personalty. In Jester v. Overseers of the Poor of Jefferson Township, 11 Pa. 540, it was held that the overseers of the poor had a right to be substituted as plaintiff for one who, after bringing an action of ejectment to recover his life estate, became and died a pauper, upon the ground that they, and not the heirs at law, were next in interest to the plaintiff under sec. 3 of the Act of April 13, 1807, 4 Sm. L. 476. Of course the only purpose in substituting the overseers as plaintiff was to enable them through the pending action to recover the rents, issues and profits that had accrued in the lifetime of the decedent. Thus it will be seen that this case also had the support of the express provision properly construed of the act relating to the real estate of a pauper. But these cases do not establish a principle that controls in the distribution of the proceeds of a judicial sale of real estate for the payment of debts, made after the death of the pauper. So far as real estate is concerned, the right of the poor district is restricted by the plain terms of the act of 1836 to the recovery thereof and the taking of the rents, issues and profits. The right given by the later Act of April 4, 1877, P. L. 51, to lease the real estate, does not affect the question before us, except as it strengthens the conclusion that the legislature never intended to give the poor district the right, either directly or indirectly, to appropriate the corpus of the estate. In the present case the poor district did not elect to exercise its power relative to the decedent’s real estate in her lifetime or afterwards. On the contrary, it is fairly inferable from the testimony of the director that it was deemed for the best interests of the poor district not to do so. But be the inference from his testimony as it may, it is plain that the claim of the poor district acquired no lien on her real estate in her lifetime. This is conceded by the learned counsel for the appellant, but he argues that, being a debt or obligation which was not extinguished by her death, and the lands of decedents being assets for the payment of debts, the claim became a lien upon her death for the period of two years, by operation of the law relating to the lien of unsecured debts of decedents. When one applies for and accepts charitable relief there may be a legal presumption, in view of the statutory provision above quoted, that he assents that his personal property shall be taken and sold by the district, and that his real estate, whether in his possession or that of another, shall be taken and the rents, issues and profits thereof applied to his future support or to the satisfaction of the claim of the district for past support. This, for present purposes may be conceded as bringing him into a quasi-contractual relation with the district. But that he thereby incurs a debt, in the ordinary sense of that term, for the recovery of which an action may be brought and a judgment recovered which may be satisfied by a forced sale of his real estate is a widely different proposition to which we cannot give assent. And if the impliedly contractual obligation, or more properly speaking statutory obligation, is not of that nature and scope at the death of the pauper, it is impossible to conclude that immediately thereafter it becomes a debt for the payment of which the poor district can compel a sale of the real estate, or appropriate the proceeds of a sale made for that purpose upon the application of some other person qualified to make it.

It is suggested as in some way supporting the appellant’s claim, that the city was prevented from exercising its power under the act of 1836 relative to the real estate. This position does not seem to be warranted by any evidence that the poor authorities made opposition to the proceeding for the sale. They had ample opportunity to exercise whatever right the city had in respect of the real estate. Apparently, however, and no doubt wisely, they chose not to take the land. Under all the circumstances, they must be deemed voluntarily to have rested on the chance of recovering the claim as an ordinary debt upon distribution of the decedent’s estate.

The decree is affirmed at the costs of the appellant.