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two-story frame shingle roof dwelling and Motion for judgment non obstante vereadditions."

dicto.
"$300.00 on his household and kitchen

Jennings & Jennings for plaintiff.
furniture," &c.
“$1100.00 on his frame bank barn and

Mehard, Scully & Mehard for defendant. additions thereto."

March 19, 1917. HAYMAKER, J.— The "$00.00 on his grain and hay shed or plaintiff, at the conclusion of the trial, put a stable.”

point for binding instructions, in her favor; Specific amounts are placed on each of six and the defendant asked for like instructions other plainly described items.

in its favor. We affirmed plaintiff's point The statement claims an aggregate sum and directed a verdict for her. and there is nothing on the record, or legally The plaintiff seeks to recover the amount before the court which would enable it to of a benefit certificate issued by the defenddetermine whether all, or if not all, which ant to one Catharine Sarsfield, on the of the items insured had been destroyed or ground that she became the beneficiary on damaged.

the death of the insured. The defendant If the affidavit of defense would only contends that it not only refused to accept deny the truth or accuracy of the aggregate or recognize plaintiff as a beneficiary, but amount claimed in the statement in as gen- that she could not have become such under eral a way as the claim is made, it would be either the law, or the constitution or by-laws such a direct answer to the claim as would of the order. The defendant is a beneficial require plaintiff to prove his claim.

association incorporated under the laws of In the case of Giordano v. St. Paul F. & the State of Indiana, and authorized to do M. Ins. Co., 63 Pa. Sup. Ct. 236, Mr. business in the State of Pennsylvania. 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 benefici

For these reasons, the affidavit of defense ary entitled to receive $1,000 on the death in this case, in our opinion, is sufficient to of the insured. The husband died in the prevent summary judgment,

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. any living relative, or means of support.

When her husband died she was taken to

the home of the plaintiff, where she was C. P. of

Allegheny Co. maintained and cared for until her death on Green v. Supreme Lodge Knights and April 30, 1914. The plaintiff was neither

a relative of nor a dependent on the insured, Ladies of Honor

Mrs. Sarsfield, and for those reasons the deInsurance Beneficiary --Constitution and

fendant contends that there can be no recovBy-Laws---Waiving Provisions Thereof. ery in this case, while the plaintiff contends

that the plaintiff waived these objections Judgment will be entered for plaintiff in an and recognized the plaintiff as the beneficiaction by a beneficiary under a beneficiary insurance {policy where the defense was that plaintiff ary under that certificate. It cannot be disdid not belong to any of the classes designated puted that Mrs Sarsfield desired, and made as possible beneficiaries under the constitution and every effort to have the plaintiff designated by-laws of the association, and it appeared that as the beneficiary, and the question is: Did all premiums had been paid regularly and deced- she succeed legally under the undisputed ent was in good standing at the time of death, and there was no evidence to show that plaintiff facts in this case? We think she did. On was not the beneficiary named on the books of the her husband's death she found herself a lodge.

feeble old woman, without means or relatives, There is no rule or law that prevents a bene- but in the possession of a benefit certificate ficial insurance association from waiving any of the provisions

its constitution or by-laws, if it on which she had paid assessments to the sees fit so to do.

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which she was in good standing. In the 1914, which the defendant thereafter respring of 1911 she applied to l1r. 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 nɔ 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 calle i 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 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 III. 187; The Bloomington Mut. Ben. money orders, to the financial secretary of Assn. v. Blue, 120 III. 121; Schoen et al. the local lodge, accompanied by a receipt v. Grand L. A. (). 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., u 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, I dependent on her; that when it was accept

Lancaster Co.

Work Legal Record C. P. of

Miller y. Pequea Township School

District

Vol. XXXI

THURSDAY, JILY 12, 1917

No. 9

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Contract with teachers-Alark of teachers ing the assessments on her certificate there was no one to whom the amount of the cer

--Salary - Discretion of directors. tificate could be paid under its constitution A board of school directors agreed to pay to a and by-laws, if not to the plaintiff, and yet teacher as his salary $50. to $55. (1, $50, 1, $55) it saw fit to receive those assessments from per mark per month." The County Superintendthe plaintiff regularly down to and including but the directors reduced his mark to:— and

ent in his report gave the teacher a No. i mark the day of the death of the insured. We refused to pay him more than $50 a month. On see no reason for entering judgment for the suit for $5 a month more, Held, that the direcdefendant. n. 0. V., and judgment is now

tors had authority to make such a contract but the entered for the plaintiff.

mark designated in the contract was the mark of the Superintendent and the plaintiff was entitled tu a verdict.

Rule for judgment for defendant n. 0. v.
C. P. of

Lehigh Co.
Troxell v. Troxell

Hl. Frank Eshleman for rule.

Coyle Keller, contra.
Divorce - Libel-Causes for Ditorce.

June 23, 1917. LANDIS, P. J.-An exDivorce is of statutory origin, and the libel amination of the testimony taken upon the should contain the language of the statute. trial shows that none of the essential facts

In an action by a wife for divorce, an allega- in the case were in dispute. On July 25, tion of personal indignities is insuthcient without the allegation that these forced the libellant to 1914, the plaintiff was employed as a teacher withdraw from respondent's house and family.

in the Columbus school-house of Pequea GROMAN, P. J.-The School District, for the term of seven months. Act of March 13, 1815, provides iwo dis- beginning in August or September, 1914. tinct causes of divorce as follows: "When

A written contract was entered into on that any' husband shall have, by cruel and bar- day, which was signed by the plaintiff and barous treatment, endangered his wife's life," by the president of the school board on beor "offered such indignities to her person, provided that the employment should be

half of the school district. Thereby it was life burthensome, and thereby forced her to

subject to the visitation of the county superwithdraw from his house and family.” The intendent, and that the compensation should libel 'sets forth the following cause: “By

be "$50 to $55 (1--, $50, 1, $55) per cruel and barbarous treatment and indigni

mark per month.” In pursuance of this ; ties to her person rendered her condition in agreement, the plaintiff entered upon his tolerable and life burdensome.” Divorce is

duties, and he continued to perform them of statutory origin and the libel should con during the whole term stipulated in the con

tract. tain the language of the statute; Sites v.

He so far has received fifty dollars Sites, 23 Pa. C. C. 439. The libel fails to there is due to him an additional sum of

a month for his services, and he claims that • allege that the indignities offered to her person forced her to withdraw from res

five dollars per month. Out of this claim, 'pondent's house and family. The libel is

the present controversy arises. thus defective and alleges no ground for During the year, the county superintenddivorce provided for by the Act; where a ent visited the schools of he district, includlibel is defective, it is the duty of the Court ing the Columbus school. He thereupon, on to refuse a decree: Dunkel v, Dunkel, 11 March 17, 1915, sent a letter addressed to Pa. C. C., 297. The following authorities the secretary of the board of school directors - throw additional light on the averments to of Pequea Township, in which he said: “I be contained in libels for divorce as this have the honor to report to you that I have court views the question involved: Edwards given all the teachers of your district a v. Edwards, 9 Philadelphia 617; Spengler number one mark, except the followingv. Spengler, 15 W. N. C. 437; Schlichter named persons, who have the rank indicated : v. Schlichter, ro Philadelphia 11.

r: Verna Forry. Mark: 1--" He Decree in divorce refused.

then added: "In forming a judgment of a

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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 ac

proceeding being void, no payment should motion, reduced the mark of the plaintiff

count of the contract. 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

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 | I am of opinion that, under the circumagreement entered into between these parties. stances, the defendant was not entitled to The written agreement fixed the compensa- the verdict, and for that reason the rule for tion of the plaintiff according to the quality judgment for defendant non obstante veres of his work, as shown by his mark. There

dicto is discharged. was nothing unfair or illegal in such an arrangement. On the contrary, it was the Rule discharged.

lating there the distribut

Bill and

M. J. A tiff.

J.W.C

May 29 tiff

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C. P. of

Lackawanna Co. answer herein had been verified on his oath

taken by and before a notary public in San Jayne v. Jayne et al.

Francisco, March 22, 1916. In the meanHusband and Wife-Desertion-Husband's time, being without means of her own,

Beneficial Ownership in Land. plaintiff has supported herself and child, a When a son purchased an improved town lot, son now nearly four years of age, by her for his own use, with money in part borrowed own labor. Defendant has neither commufrom his mother on his oral promise to repay the nicated with her nor contributed in any way same in certain installments, and caused the deed to the support of either herself or her child, to be made in the mother's name as grantee, but and has wholly neglected to provide for their without her knowledge or requesi, and for several years lived on the premises in undisputed pos- maintenance in any degree whatsoever ; session, paying taxes and insurance, Held, that though she has continued to occupy the house the mother merely holds the legal title as trustee, where they were living when he deserted while the beneficial ownership is in the son, and her. This is the premises next hereinafter as such the property is liable to seizure for his debts, or other liabilities in the nature of debt, described, the ownership of which is alleged when reduced to judgment either at law or in to be in defendant, though the legal title is equity.

in his mother, Gertrude E. Jayne. The In an action in equity where it is showa that latter and her husband are accordingly joined such beneficial owner had wilfully deseried his wife and child without reasonable cause, removed as

co-defendants. For convenience the to another state, and thereafter wholly neglected mother will be hereinafter referred to as to provide for their maintenance, and he is di- Mrs. Jayne. rected to make certain monthly payments to the wife, the property may, in default of such pay

2. The premises sought to be charged ments, be seized and sold to recover the amount with the relief prayed for is a town lot, with 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

being thirty feet wide in front and rear, have to reclaim an unpaid balance of the loan out rectangular in shape and sixty-five feet deep. of the property. in absence of any agreement re- It is known and designated as lot No. 26, lating thereto, is a question to be determined on on map entitled “Spruks' Linden Street the distribution.

Plot," duly recorded in the proper office of Bill and answer.

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.

made to the third paragraph of the bill and

also to the deed hereinafter recited. The J. W. Carpenter for defendants.

improvements consist of a two-story frame May 29th, 1917. NEWCOMB, J.-Plain- dwelling house known as No. 1220 Linden tiff, a married woman, sues to enforce the street, and altogether the property is probhusband's duty of maintenance by means of ably of the value of $5,000. seizure of his lands and tenements. The 3. It was purchased by defendant at the facts are free from material dispute, so that price of $4,500, by article of agreement in the only questions in the case are those of writing with Edward J. McCabe, the then law.

owner, dated August 1, 1913. Later, the From the pleadings, evidence and argu- same month, the sale was consummated by ments of counsel I find the following formal deed in fee—not to defendant, how

ever, but to Gertrude E. Jayne, his mother. CONCLUSIONS OF FACT.

The deed, dated August 15th, was delivered 1. The plaintiff is, and at all times with to defendant the 20th, and by him placed which the issue is concerned has been, the upon record the 21st of August, 1913, in wife of Lawrence C. Jayne, hereinafter the proper office of this county, in Deed called the defendant, who, without any rea- Book 271, at page 36. It had_been so sonable cause, abandoned and wilfully de- drawn at his sole instance. The first serted her and their only child on the 30th knowledge that she was the nominal grantee day of August, 1915, at their home in this came to Mrs. Jayne casually after the date city, where plaintiff has at all times had her of record. 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 l his own use and benefit. He had made the

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