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two-story frame shingle roof dwelling and additions."

"$300.00 on his household and kitchen furniture," &c.

"$1100.00 on his frame bank barn and additions thereto."

"$00.00 on his grain and hay shed or stable."

Specific amounts are placed on each of six other plainly described items.

The statement claims an aggregate sum and there is nothing on the record, or legally before the court which would enable it to determine whether all, or if not all, which of the items insured had been destroyed or damaged.

If the affidavit of defense would only deny the truth or accuracy of the aggregate amount claimed in the statement in as general a way as the claim is made, it would be such a direct answer to the claim as would require plaintiff to prove his claim.

Motion for judgment non obstante veredicto.

Jennings & Jennings for plaintiff.

Mehard, Scully & Mehard for defendant.

March 19, 1917. HAYMAKER, J.-The plaintiff, at the conclusion of the trial, put a point for binding instructions, in her favor; and the defendant asked for like instructions in its favor. We affirmed plaintiff's point and directed a verdict for her.

The plaintiff seeks to recover the amount of a benefit certificate issued by the defendant to one Catharine Sarsfield, on the ground that she became the beneficiary on the death of the insured. The defendant contends that it not only refused to accept or recognize plaintiff as a beneficiary, but that she could not have become such under either the law, or the constitution or by-laws of the order. The defendant is a beneficial association incorporated under the laws of the State of Indiana, and authorized to do business in the State of Pennsylvania.

In the case of Giordano v. St. Paul F. & M. Ins. Co., 63 Pa. Sup. Ct. 236, Mr. Justice Trexler, speaking for the Superior On and prior to September 24, 1903, a Court said, "The plaintiff in his statement subordinate lodge of defendant was located sets forth his loss in a lump figure. The in the Borough of Braddock, in this county, defendant in his defense uses the same known as Fort Liberty Lodge, No. 606, of method. We see no reason why the de- which Mrs. Sarsfield became a member, and fendant should be held to a greater particu- on that date the defendant issued to her its larily than the plaintiff; Wiland v. Royal beneficial certificate, in which her husband, Ins. Co., 61 Pa. Superior Ct. 409." Joseph Sarsfield, was named as the beneficiary entitled to receive $1,000 on the death of the insured. The husband died in the year 1910. On the death of her husband Motion for judgment for want of a Mrs. Sarsfield was quite old and without sufficient affidavit of defense is refused.

For these reasons, the affidavit of defense in this case, in our opinion, is sufficient to prevent summary judgment.

C. P. of

any living relative, or means of support. When her husband died she was taken to the home of the plaintiff, where she was Allegheny Co. maintained and cared for until her death on

Green v. Supreme Lodge Knights and April 30, 1914. The plaintiff was neither

Insurance

Ladies of Honor

Beneficiary Constitution and By-Laws--Waiving Provisions Thereof.

Judgment will be entered for plaintiff in an action by a beneficiary under a beneficiary insurance policy where the defense was that plaintiff did not belong to any of the classes designated as possible beneficiaries under the constitution and by-laws of the association, and it appeared that all premiums had been paid regularly and decedent was in good standing at the time of death, and there was no evidence to show that plaintiff was not the beneficiary named on the books of the lodge.

a relative of nor a dependent on the insured, Mrs. Sarsfield, and for those reasons the defendant contends that there can be no recov

ery in this case, while the plaintiff contends that the plaintiff waived these objections. and recognized the plaintiff as the beneficiary under that certificate. It cannot be disputed that Mrs Sarsfield desired, and made every effort to have the plaintiff designated as the beneficiary, and the question is: Did she succeed legally under the undisputed facts in this case? We think she did. On her husband's death she found herself a feeble old woman, without means or relatives, but in the possession of a benefit certificate

There is no rule or law that prevents a beneficial insurance association from waiving any of the provisions of its constitution or by-laws, if it on which she had paid assessments to the defendant for six or seven years, and in

sees fit so to do.

which she was in good standing. In the 1914, which the defendant thereafter respring of 1911 she applied to Mr. Gaeb, the tained, and still retains. As we have said, recording secretary of the subordinate lodge, Mrs. Sarsfield forwarded to the Supreme to have the plaintiff designated as the bene- Lodge in the fall of 1911, her application ficiary of her policy, and he sent the neces- and affidavit for the substitution of the sary paper, the policy and the necessary fee plaintiff as her beneficiary, to which the deof fifty cents to the Supreme Lodge for that fendant thereafter made no formal objecpurpose, but they were returned to her with tion, and thereafter that beneficiary regularly the information that such change could not paid in advance all assessments that accrued be made. A careful reading of the testi- to the defendant on the policy or certificate. mony of practically all the witnesses in rela- The defendant offered no denial of payment, tion to that attempt to have the plaintiff nor did it offer to show that the plaintiff named as beneficiary, together with the was not in fact made the beneficiary on the refusal of the Order, and notice to Mrs. books of the lodge, but contents itself by Sarsfield, with her statements at the time of saying that under the constitution and bythe rejection, will show that they were laws of the organization such substitution speaking of an effort that was made in the was legally impossible. Our attention has spring of 1911. On the 13th of December, been called to no Act of the Legislature of 1911, Mrs. Sarsfield made the second effort either Indiana or this State prohibiting the to have the plaintiff named as her beneficiary, designation of such beneficiary, and as the and in doing so she executed and swore to a statutes of this State would govern the case paper called a "Dependent Beneficiary Affi- no such prohibition exists in our Act of davit," called "Exhibit 2," in which was set April 6, 1893, P. L. 7, invalidating the conforth the name and number of her lodge, tract made by the defendant with the insured the fact that she desired to change her bene- under the facts in this case; Shumega v. ficiary, the name of the plaintiff as the new First Catholic Slovak Union of the United beneficiary, that she was dependent on the States of America, 61 Sup. Ct. 126. The proposed beneficiary, that they were not re- defendant, however, contends that under lated, and that the relation between them he relief fund laws of the order (Law 4, was fixed by contract and not dependency. Designation of Beneficiaries, Secs. 1 and 2) At the same time she made an affidavit that the benefit cannot be made payable to the she had no living relative, and both papers plaintiff, but must be limited to one or other were sent through Mr. Callahan, a Notary of the two classes enumerated, neither of Public, to Mr. Connel, the Supreme Secre- which applies to this plaintiff. Even if tary in the State of Indiana. That applica- those provisions do exclude the plaintiff, tion, "Exhibit 2," was later returned to her there is no rule or law that prevents the aswith the stamp of the Supreme Secretary sociation from waiving any of the provisions thereon, showing that it had been received of its constitution or by-laws, if it sees fit so by him, but without any objection or com- to do; Beil v. Sup. Lodge Knights of ment. From that time until the death of Honor, 80 App. Div. (N. Y.) 609; FanMrs. Sarsfield, on April 30, 1914, the plain- ning v. The Sup. Council of C. M. B. tiff regularly paid, in advance, all assess- Assn., 84 App. Div. (N. Y.) 205; Lamont ments that accrued on the certificate to the v. Hotelmen's Mut. Ben. Assn., 30 Fed. local lodge with the knowledge of the Rep. 817; Coverdale et al. v. The Royal officers thereof that they were paid by her. Arcanum, 193 Ill. 91; Delaney v. Delaney, The plaintiff made remittances by post office 175 Ill. 187; The Bloomington Mut. Ben. money orders, to the financial secretary of Assn. v. Blue, 120 Ill. 121; Schoen et al. the local lodge, accompanied by a receipt v. Grand L. A. O. U. Workmen et al., 85 book or card, and thereafter the book or Minn. 349; St. Louis P. R. Assn. v. Strode card was returned in an envelope addressed et al., 103 Mo. 694; Grand A. O. of U. to the plaintiff. There was no denial on W. of St. of Mo. v. Reneau et al., 75 Mo., the part of the financial secretary that the 402; Kepler v. Sup. Lodge Knights of remittances were regularly made by the Honor, 52 N. Y. Sup. Ct. Rep. 274; Gray plaintiff to him, and that the receipts there- v. Nat. Ben. Assn., 111 Ind. 531, and for were returned to her. On April 30th, Gould v. Dwelling House Ins. Co., 134 Pa. 1914, the day on which the insured died, 570. The defendant knew that the insured the plaintiff paid to defendant the sum of had no known living relative, or any one $2.65, being the assessment due for April, dependent on her; that when it was accept

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Divorce-Libel-Causes for Divorce. Divorce is of statutory origin, and the libel should contain the language of the statute.

In an action by a wife for divorce, an allega tion of personal indignities is insufficient without the allegation that these forced the libellant to withdraw from respondent's house and family.

April 2, 1917. GROMAN, P. J.-The Act of March 13, 1815, provides two distinct causes of divorce as follows: "When any husband shall have, by cruel and barbarous treatment, endangered his wife's life," or "offered such indignities to her person, as to render her condition, intollerable and life burthensome, and thereby forced her to withdraw from his house and family." The libel sets forth the following cause: "By - cruel and barbarous treatment and indignities to her person rendered her condition in tolerable and life burdensome." Divorce is of statutory origin and the libel should contain the language of the statute; Sites v. Sites, 23 Pa. C. C. 439. The libel fails to allege that the indignities offered to her person forced her to withdraw from respondent's house and family. The libel is thus defective and alleges no ground for divorce provided for by the Act; where a libel is defective, it is the duty of the Court to refuse a decree: Dunkel v, Dunkel, 11 Pa. C. C., 297. The following authorities - throw additional light on the averments to be contained in libels for divorce as this court views the question involved: Edwards v. Edwards, 9 Philadelphia 617; Spengler - v. Spengler, 15 W. N. C. 437; Schlichter v. Schlichter, 10 Philadelphia 11. Decree in divorce refused.

3

Lancaster Co.

Miller v. Pequea Township School
District

Contract with teachers-Mark of teachers
-Salary - Discretion of directors,

A board of school directors agreed to pay to a teacher as his salary "$50. to $55. (1, $50, 1, $55) per mark per month." The County Superintendbut the directors reduced his mark to 1-and ent in his report gave the teacher a No. 1 mark refused to pay him more than $50 a month. On suit for $5 a month more, HELD, that the directors had authority to make such a contract but the mark designated in the contract was the mark of the Superintendent and the plaintiff was entitled to a verdict.

Rule for judgment for defendant n. o. v.

H. Frank Eshleman for rule.
Coyle Keller, contra.

June 23, 1917. LANDIS, P. J.-An examination of the testimony taken upon the trial shows that none of the essential facts in the case were in dispute. On July 25, 1914, the plaintiff was employed as a teacher in the Columbus school-house of Pequea School District, for the term of seven months, beginning in August or September, 1914.

A written contract was entered into on that day, which was signed by the plaintiff and by the president of the school board on behalf of the school district. Thereby it was provided that the employment should be subject to the visitation of the county superintendent, and that the compensation should mark per month." In pursuance of this be "$50 to $55 (1—, $50, 1, $55) per agreement, the plaintiff entered upon his duties, and he continued to perform them during the whole term stipulated in the contract. He so far has received fifty dollars there is due to him an additional sum of a month for his services, and he claims that five dollars per month. Out of this claim, the present controversy arises.

During the year, the county superintendent visited the schools of he district, including the Columbus school. He thereupon, on March 17, 1915, sent a letter addressed to the secretary of the board of school directors of Pequea Township, in which he said: "I have the honor to report to you that I have given all the teachers of your district a number one mark, except the followingnamed persons, who have the rank indicated: Teacher: Verna Forry. Mark: 1-". He then added: "In forming a judgment of a

count of the contract.

teacher's work, the following points were best method for both parties, for it stimulatconsidered: The condition of the school ed the plaintiff to render good service, and, room with reference to the purity of the air, on the other hand, it protected the school the temperature, cleanliness and neatness, board against paying the larger price for incare for the eyes of the children as shown ferior service. This is a common arrangeby the proper adjustment of the shades, the ment made throughout the state between attitude of the teacher toward the children boards of directors and their teachers. It is and toward visitors, the methods of instruc-not a delegation of the duty of the school tion, and the grasp of the subject, the interest board in fixing the salary to some one else, and the general spirit of the school, the en- but simply a fair way of arriving at the true thusiasm and alertness of the teacher. In a value of the service. The contention of the short visit, the superintendent can form only learned counsel for the defendant upon this a partially correct judgment of the work of point seems to me to have no basis to rest a teacher. Directors should take into con- upon. The inconsistency of his position is sideration their own impressions, and the apparent. If the school board had no right errors in judgment made by the superin- to enter into such a contract, then the real tendent should be corrected by the board." question is not as to the difference between At a meeting of the school board held on fifty and fifty-five dollars, but the whole March 27, 1915, the board, of its own have been made by the shool board on acproceeding being void, no payment should motion, reduced the mark of the plaintiff from one to one-minus. The secretary thereupon wrote to the plaintiff, among other If, then, the school directors had, as we things, the following: "Although he has not concluded they had, authority to make such changed your mark the board, after carefully an agreement the sole question to be deterand impartially considering work with refer- mined was, what the true meaning of the ence to thoroughness and the manner in instrument was. Of course, where the which the subjects were drawn out, and also words of a writing are not doubtful, it is being mindful of the duty to some of our the duty of the Court to interpret them and other teachers, as well the patrons and tax- to so instruct the jury, and I am disposed to payers, has by a unanimous vote given your think that the jury could have been, without mark one minus (1) with a corresponding error, told that the mark as designated in salary $50.00." It was, therefore, claimed the contract was the mark of the county upon the trial that the school board had a superintendent, and that it was intended by right, in its discretion, to fix the mark, not- the parties that that mark should govern the withstanding the action of the county super- compensation to be paid the plaintiff. But, intendent, and, having used that discretion as some doubt might arise concerning the and fixed the lower mark, the plaintiff is not settlement of the controversy in this manner entitled to recover the amount which he as a question of law, the Court deemed it would have received under the mark given better to submit the question to the jury, him by the county superintendent. in order that they might ascertain the meanUnder section 403 of the School Code of ing of the words as used in the agreement. May 18, 1911, P. L. 309, it is provided that In so doing, the defendant could suffer no the school directors of every school district harm. and the Court could retain the right are required, among other things, to fix the to enter a judgment, if it concluded that the "salaries or compensation of officers, teachers jury's finding was not in accordance with or other appointees of the board of school the law. However, as the verdict of the directors." The salary or compensation is jury is now in accord with the opinion of not required to be a specified and unchang- the Court. it is clear that the submission ing sum. It may be, and very often is, made was not injurious to the defendant. dependable upon conditions thereafter arising, and this was the case under the terms of the agreement entered into between these parties. The written agreement fixed the compensation of the plaintiff according to the quality of his work, as shown by his mark. There was nothing unfair or illegal in such an arrangement. On the contrary, it was the

I am of opinion that, under the circumstances, the defendant was not entitled to the verdict, and for that reason the rule for judgment for defendant non obstante veredicto is discharged.

Rule discharged.

C. P. of

Jayne v. Jayne et al.

Husband and Wife-Desertion-Husband's
Beneficial Ownership in Land.

Lackawanna Co. answer herein had been verified on his oath
taken by and before a notary public in San
Francisco, March 22, 1916. In the mean-
time, being without means of her own,
plaintiff has supported herself and child, a
son now nearly four years of age, by her
Defendant has neither commu-
own labor.
nicated with her nor contributed in any way
to the support of either herself or her child,
and has wholly neglected to provide for their
maintenance in any degree whatsoever;
though she has continued to occupy the house
where they were living when he deserted
her. This is the premises next hereinafter
described, the ownership of which is alleged
to be in defendant, though the legal title is
in his mother, Gertrude E. Jayne. The
latter and her husband are accordingly joined
co-defendants. For convenience the
mother will be hereinafter referred to as
Mrs. Jayne.

When a son purchased an improved town lot, for his own use, with money in part borrowed from his mother on his oral promise to repay the same in certain installments, and caused the deed to be made in the mother's name as grantee, but without her knowledge or request, and for several years lived on the premises in undisputed possession, paying taxes and insurance, HELD, that the mother merely holds the legal title as trustee, while the beneficial ownership is in the son, and as such the property is liable to seizure for his debts, or other liabilities in the nature of debt, when reduced to judgment either at law or in equity.

In an action in equity where it is shown that such beneficial owner had wilfully deserted his wife and child without reasonable cause, removed to another state, and thereafter wholly neglected to provide for their maintenance, and he is directed to make certain monthly payments to the

wife, the property may, in default of such pay

as

2.

with the relief prayed for is a town lot, with The premises sought to be charged ments, be seized and sold to recover the amount so awarded, and both mother and son be enjoined its improvements, fronting on the southfrom disposing of or encumbering the same pend-westerly side of Linden street, in this city, ing the sale.

As to what standing, if any, the mother may have to reclaim an unpaid balance of the loan out of the property, in absence of any agreement relating thereto, is a question to be determined on the distribution.

Bill and answer.

being thirty feet wide in front and rear, rectangular in shape and sixty-five feet deep. It is known and designated as lot No. 26, on map entitled "Spruks' Linden Street Plot," duly recorded in the proper office of this county in Map Book No. 1, at page 122.

M. J. Martin and E. D. Adair for plain- For more minute description reference is

tiff.

J. W. Carpenter for defendants.

made to the third paragraph of the bill and also to the deed hereinafter recited. The improvements consist of a two-story frame dwelling house known as No. 1220 Linden street, and altogether the property is probably of the value of $5,000.

May 29th, 1917. NEWCOMB, J.-Plaintiff, a married woman, sues to enforce the husband's duty of maintenance by means of seizure of his lands and tenements. The 3. It was purchased by defendant at the facts are free from material dispute, so that the only questions in the case are those of law.

From the pleadings, evidence and arguments of counsel I find the following

CONCLUSIONS OF FACT.

price of $4,500, by article of agreement in writing with Edward J. McCabe, the then owner, dated August 1, 1913. Later, the same month, the sale was consummated by formal deed in fee-not to defendant, however, but to Gertrude E. Jayne, his mother. The deed, dated August 15th, was delivered to defendant the 20th, and by him placed upon record the 21st of August, 1913, in the proper office of this county, in Deed Book 271, at page 36. It had been_so drawn at his sole instance. The first knowledge that she was the nominal grantee came to Mrs. Jayne casually after the date of record.

1. The plaintiff is, and at all times with which the issue is concerned has been, the wife of Lawrence C. Jayne, hereinafter called the defendant, who, without any reasonable cause, abandoned and wilfully deserted her and their only child on the 30th day of August, 1915, at their home in this city, where plaintiff has at all times had her domicile. The desertion has been persisted 4. She had nothing whatever to do with in from that date ever since. It appeared the purchase or its consummation. That at the trial that defendant was then living had been negotiated wholly by defendant for at Martinez, California, though his separate his own use and benefit. He had made the

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