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No. 15

Q. S. of

C. P. of

without K.'s cousent.

YORK LEGAL RECORD. petitioners is that the jury shall view both

and if they find the new road will superTHURSDAY, JUNE 14, 1883.

sede the necessity of the old, then to grant

it and vacate the old one. They did not QUARTER SESSIONS.

pray for both roads. If they desired the

new road whether the old one should be Delaware County. vacated or not they should have so wordRoad in Ridley

ed their petition. Road LauDefective Report.

The report is set aside. When damages are assessed by a road jury the report must set out that the lands against which the damages

COMMON PLEAS. are assessed are near and adjacent to the road.

When the prayer of the petitioners is that the jury may view both the old and the proposed road, and “if they

Chester County. should see occasion to lay out the same, to inquire of and vacate" the old road, a report which does not vacate the Kennebec Ice and Coal Co. v. Wilmington old road will be defective.

and Northern R. R. Co. Exceptions to report of Jury to view, &c.

Right to sue in another's name without

consentSubrogation-Insurer and InThe opinion of the Court in this case

suredWarrant of attorney-What is sets out all the material facts.

a sufficient warrant. June 4, 1883. CLAYTON, P.J. The re- Where insurance compavies have paid losses upon

property destroyed by fire through the alleged negligence port is defective in not setting forth that of a third party, they may bring suit against the wrong.

doer, in the name of the assured, without his consent, the lands of Hugh Boyd, against which and the assured cannot prevent such use of his name, or,

by a release to the defendant, defeat the action. the viewers have assessed damages, are

In such case, the insurers are not obliged to wait the near and adjacent to said road, or adjoin- pleasure of the assured whether he will bring suit.

Seven insurance companies having paid losses upon the ing the same. This is necessary for the

property of K., which was burned through the alleged

negligence of W., instituted suit in the name of K., but protection of the person to whom the

Warrants of attorney having been

filed, executed by the several insurance companies a rule damages are awarded. It may be that was taken by defeudaut to show cause why proceedings

should not be stayed until a letter of attorney was filed Mr. Boyd might plead the irregularity in executed by K. An answer to the rule was filed showing

the payment of the losses by the insurance companies, and the proceedings against him. Whether the refusal of K. to institute suit or join in the suit as in.

stituled, or authorize the use of K.'s name as plaintiff . he could necessarily do so, is not now de- Held, That the warrants of attorney filed were sufficient cided. When the question arises in such Sur rule by defendant upon the attora way that the judgment of the court will

ney who filed the narr. in this case,” to file be final and binding on the parties we

their warrant of attorney, proceedings

to stay. will decide that question. The suggestion

The attorneys of record for plaintiff of the defect and the doubt as to its effect had, under a prior rule to file warrant of is enough to avoid the report.

attorney, filed warrants of attorney exeI am also of opinion that by the pecu- cuted by seven certain fire insurance comliar language of the petition and order of panies who claimed the right to bring this

action of trespass on the case in the name court to the viewers, they were bound to

of the Kennebec Ice and Coal Co. to revacate the old road if they granted the

cover damages from the defendant, The language af the petition through whose alleged negligence the and order is as follows: "If they (the ice-house of the Kennebec Ice and Coal viewers) should see occasion to lay out the Co. was destroyed by fire, whereby the

said insurance companies were compelled same, to inquire of and vacate the public to pay and did pay to the said ice and road now opened known as the Amos- coal company certain amounts assured land road from the point of the beginning thereon. of the proposed road to the point where In answer to the present rule, the attorthe said Academy avenue intersects the neys of record for plaintiff set forth that said public road known as the Amosland

the President of the said Kennebec Ice

and Coal Co. had been requested by the road, which last mentioned road will by said insurance companies to bring suit, reason of the laying out of the proposed for their use, against the defendant, but road become useless. The prayer of the refused so to do or to authorize them to

new one.

sue in his name, giving as a reason that nebec Ice and Coal Company against the the said ice company is dependent upon Wilmington and Northern Railroad Comthe railroad company defendants for its pany. supplies of ice. The respondents insisted The plaintiff was the owner of an icethat the insurance companies had the right house, situate on the line of the defendto sue in the plaintiff's name without his ant's railroad in this county, which the consent, and that the warrants of attorney declaration alleges was set fire to and executed by the insurance companies, and burned through the negligence of the already filed, were sufficient in law. defendant, and the ice with which it was

It appeared that in addition to the seven stored was destroyed, whereby the plaininsurance companies above referreed to, tiff suffered damage, etc. the burned premises were insured in two The defendant obtained a rule on the other companies, who had not paid their attorneys of record for the plaintiff to file losses, but who had knowledge of the their letter of attorney, and also took a bringing of this suit.

rule to show cause why the proceedings Wm. M. Hayes, for the rule.

shall not be stayed until a letter of attorThis suit being brought in the name of ney is filed executed by the legal plaintiff. the Kennebec Coal and Ice Co. against The attorneys of record for the plaintiff its consent, a recovery would not be a bar presents letters of attorney from seven fire to a second action brought by its direc- insurance companies and say that the tion. The insurance companies are not property burned was insured by the plainnamed as equitable plaintiffs, and war- tiff with them, and that they have paid to rants of attorney executed by them have the plaintiff the insurance nioneys amountno affect whatever.

ing to a large sum, to wit, the sum of $15,Hýneman & Cohen and W. T. Bar- 855; that the plaintiff declined to institute ber contra.

suit against the defendant to recover the Where property insured is destroyed by damages occasioned by its negligence, or the negligence of a third party, the insur- to join with the insurance companies in a er by payment of the loss, becomes sub- suit, or to authorize them to use the name rogated to tñe rights of the assured to the of the plaintiff, although requested so to extent of the sum paid under the policy, ! do, and that, upon such declination, they and may bring an action in the name of caused this action to be instituted in the the assured for his own benefit with or name of the Keunebec Ice and Coal Coniwithout the consent of the assured, and a pany, and they ask that the letters of atrelease by the assured would be no de- i torney thus presented by them shall be fence to such a suit :

accepted as sufficient to authorize them to Wood on Fire Insurance, secs. 473, 474

conduct the legal proceedings thus instiFlanders on Fire Insurance, 648

tuted. Mason v. Sainsbury, 3 Doug. 51 Western Railroad Corporation, 13 Metc. 108

This presents the question whether Moumouth Fire Insurance Co. v. Hutchinson, 21 N. J. Eq. 117

these fire insurance companies have, under Hendrickson v. The Philada. and Reading Railroad Company, 8 Leg. Gaz. 125

the circumstances stated, the right to use Hall v. Railroad Company, 13 Wallace 357

the name of the plaintiff. Peoria Marine Fire Insurance Co. v. Prost, 37 Ill. 333

Where property is destroyed or injured S. C., 5 Bennett's Fire Insurance Cases, 54 Bean v. Atlantic & St. Lawrence Railroad, 58 Maine 82 by the negligence of a third person, so S. C., 5 Bennett's Fire Insurauce Case-, 341 Ætna Pire Insurance Co. v. Tyler, 16 Wend. 397

that the assured has a remedy against him Timan v. Leland. 9 Hill 237 Gracie v. N. Y. Insurance Company, 8 John 245

therefore, the insurer, by payment of the Whitehead v. Hughes, 2 C. R. & M. 318

loss, becomes subrogated to the rights of Phillips v. Clageti, i M. & W. 84. The Kennebec Ice and Coal Company under the policy. By accepting payment

the assured to the extent of the sum paid having declined to bring suit, and having from the insurer, the assured implicity had notice of the institution of this suit, assigns his right of indemnity from a partheir rights will be determined in this ac

ty liable to the insurer. It is clear that tion.

these insurance companies, having, as The rights of the two insurance com- they allege, paid the insurance, have a panies, which have not paid any losses, right, if the fire was caused by the negliare not prejudiced, inasmuch as they have gence of the defendant, to require that the had notice of this suit.

defendant shall be made liable so that they May 7, 1882. FUTHEY, P.J. This ac- may be reimbursed the loss occasioned tion is instituted in the name of the Ken- | them by: süch negligence. If the insur

S. C., 23 Pitts 147

Wood on Fire Insurance, secs. 473, 474

ance paid covers but a part of the loss 1, 1867, Abram Ludwig, the father of really incurred, then both the assured and Ephriam Ludwig and other children, bethe insurer have an interest in the amount ing a widower, and possessed of property to be recovered.

worth nearly $15,000, made a proposal of The insurers, however, having paid their marriage to Eva Rickert, a poor and desmoneys, and by reason thereof, having titute widow. The same was accompanibeen thus subrogated to the rights of the ed by a request for an ante-nuptial agreeassured to that extent, cannot be deprived ment. The said Eva Rickert accepted the of their right to reimbursement from the proposal, and assented to the request.wrong-doer by reason of the assured fail- | Thereupon the two entered into a written ing to bring suit. They have such an in- agreement, whereby the said Eva Rickert, terest as authorizes them to institute suit for the sum of one dollar, and “In conin the name of the assured, and they may sideration of her comfortable support and thus use his name without his consent, and maintenance during life, and a decent the assured cannot prevent such use of his Christian burial at her death,”agreed “to name, or, by a release to the defendant, relinquish, remise and quit-claim all dower defeat the action. They are not obliged

and thirds, and right and title of dower to wait the pleasure of the assured wheth- and thirds, and all other right, title, interer he will bring suit.

est, claim or demand whatsoever, in law If the assured has sustained loss beyond or equity, that she may acquire in the real that paid by the insurance companies

here and personal estate of the said Abram represented, the entire liability of the de- Ludwig, in case the said intended marrifendant can be determined in this suit:

age be had and solemnized.” On July 3,

1867, they were married. On November Flanders on Fire Iusurance, 648

25, 1881, Abram Ludwig died intestate.Hart v. Western Railroad, Corporation, 13 Metcalf 108 Monmouth Couuty Fire Insurance Co. v. Hutchinson

After his death, ample provision was made 21 N. J. Eq. 117

for the “comfortable maintenance and Hall v. Railroad, 13 Wallace 367 Easton v. Sainsbury, Doug. (26 E. C. L. R.) 61.

support'' of the widow, and accepted by The allegation of the defendant that her for two months afterwards, when she their company is threatened with suit by refused further to accept the terms and the plaintiff in the State of Delaware, provisions of the said ante-nuptial settlecannot affect the jurisdiction of this Court ment, and demanded her dower and rights of the cause of action which has already as widow, under the intestate laws. At attached, instituted by parties having a her request, appraisers were appointed, right to use the name the plaintiff. who appraised and set apart property to

We think the attorneys on record for the value of $300 for her separate use. the plaintiff have filed sufficient powers to such appraisement and exemption of attorney, and that the rule to show Ephriam Ludwig, one of the children of cause why proceedings shall not be stayed Abram Ludwig, excepted. must be dismissed. We will, however, Subsequently the court, McDERMITT, require the insurance companies to give P. J., dismissed the exceptions, and consecurity for costs.

firmed the said appraisement and exemp

tion. Whereupon Ephriam Ludwig took SUPREME COURT.

this appeal, assigning for error the decree

of the court. Ludwig's Appeal.

December 30, 1882. PAXSON, J. It

was decided in Tiernan v. Binns, 11 NorA widower of fifty-seven years of age entered into an ante-nuptial contract with a destitule widow of" sixiy ris 248, that when a woman about to marthree, whereby the latter, in consideration of a good aud ry relinquishes by an ante-nuptial contract confortable support during her life and a decent Christian burial, agreed to release all claim in and to her intend- all right of dower, and all interest of any a sufficient consideration, and that on the husband's death

kind whatever, to which she might be enthe widow was accordingly not entitled to $300 exemption titled in the estate of her intended hus

Appeal of Ephriam Ludwig from a de- band by reason of her marriage, she cree of the Orphans' Court of Mercer waives her right to $300 of her husband's county, dismissing exceptions to an ap- estate under the Act of April 14, 1857. praisement of three hundred dollars' It was contended, however, that this worth of property, set apart for the use of case does come within the rule of Tiernan Eva, widow of Abram Ludwig, deceased. o. Binns, for the reason that the ante-nup

The facts were as follows: About July | tial contract was a fraud upon the wife ;

ed husband's estate.

HELD That the coutract was upon

It was

that the provision contained therein for i ed to Mrs. Rickert and said to her: “Now, the latter was inadequate and dispropor- Mrs. Rickert, if you sign this, you get tioned to the means of her husband, and nothing from Mr. Ludwig's estate except that the case comes within the rule laid

your keeping and your decent Christian down in Kline's Estate, 14 P. F. Smith burial.” I said further, “I want you to un122, where it was said that “while it might derstand what you are doing, for Mr. Ludnot be necessary to show affirmatively wig has a large property; how much I that there was a full disclosure of the don't know, but whatever it is, you will property and circumstances of each, yet have no interest in it at his death-that is ifthe provision secured for the wife was un- what the paper says.” She replied to me reasonably disproportionate to the means that she understood it." of the intended husband, it raised the pre- The widow was examined without obsumption of designed concealment, and jection on her own behalf, but she does threw upon him the burden of proof:'' not say that she did not understand the Kline's Estate was well decided.

paper, or that she was deceived or misled recognized in Tiernan v. Binns, and we as to the extent of her husband's estate ; have no disposition to depart from it. But nor does she make any complaint of illwe are unable to see its application to the treatment by the children after her huspresent case. It must be remembered band's death. She moved away from her that in Kline's Estate the auditor found home because her son-in-law desired her the fact that the wife had not only signed to live with him. the ante-nuptial coutract in ignorance of There is not a scintilla of evidence to her rights, but that the extent of her hus- bring this case within the doctrine of band's property had been concealed from Kline's Estate. If we regard the proviher at the time of the execution of the sion for the widow as inadequate, it merecontract. : How stand the facts here ?- ly throws the burden of proof upon her Abram Ludwig was fifty-seven years of husband's representatives, and it has been age, a widower with eleven children, fully met. From a sentimental standwhen he entered into this ante-nuptial point the provision for the wife would not contract with Mrs. Eva Rickert, the ap- seem to be generous. But a widower of pellee The latter was at that time a des- | fifty-seven, with eleven children, seldom titute widow sixty-three years of age.- contracts a second marriage from mere Abram was then possessed of real and sentiment. personal estate worth about $14,000.The contract itself recited the facts that view of her age and position, to give her

He may have thought it was enough, in - the said Abram Ludwig is seized of lands a comfortable home, a decent support duand tenements situate in said county of ring her life, and a Christian burial after Mercer; also certain personal property in her death. At any rate it is very clear she said county," and then provides that the

was of that opinion, and that is the end said Abram and his heirs, executors and of the case. administrators, shall give and furnish the

It would have been wiser to have fixed said Eva Rickert a good and comfortable

a sum certain for the support of the widow, support in health and in sickness for and

The failure to do so, however, does not during her life, and at her death, furnish

take away the consideration of the conher with a decent and Christian burial.”

tract. The estate is bound for her support This, with the nominal sum of one dollar is all the benefit Mrs. Rickert took under and, in case of disagreement about de

tails or amounts, the Orphans' Court has the contract.

ample power in the premises. The consideration is ample to sustain the

All of the assignments except the last, contract if it is free from fraud or conceal

are to errors in the opinion of the court.ment.

They need not be discussed for obvious Upon this point we have the uncontra

The last assignment is to the dicted testimony of Judge MAXWELL, who confirmation of the appraisement of the drew the paper.

He says ; “I wrote this property set apart for the widow under ante-nuptial contract. My recollection is the Act of Assembly. This assignment the parties and myself were alone in the is sustained. office at the time this contract was writ- Decree reversed at the costs of the apten. I read it to the parties before it was pellee, and it is ordered that the record be executed. After I read this article I turn- | remitted for further proceedings.



No. 16

Cumberland Co.

YORK LEGAL RECORD. the termini being described as in the

petition. THURSDAY, JUNE 21, 1883.

To this report exceptions were filed, QUARTER SESSIONS.

three in number—the first alone was ar

gued—the second and third were not Q. S. of

pressed. Road in South Middleton Township. The exception argued is as follows :

"this report is excepted to because the Road Law--Terminus--Repeal of Or

eastern terminus thereof is not a public dinance.

point and is in the middle of a field. A petition for a road set forth that the road was to "end South street has not been opened to the at a point in the line of the borough of Carlisle, where South Street as ordered to be laid out and opened by the borough line and there is not even an orordinances of that borough would meet the line of said township of South Middleton." The report set forth that

dinance extant requiring it to be opened.” they had “laid out for public use the following road,” describing the termini as in the petition. By a borough Certain “admitted facts'' were presentordinance three viewers were appointed, who laid out South Street and assessed damages. Appeals were taken ed on the argument from which it appears from this award of damages, and are still undetermined. At a subsequent meeting the town council passed an ordi- that South street, in the borough of Carpance repealing the 'opening ordinauce,' but this repealing act was never transcribed in the ordinance book or lisle, was never opened from its west end signed by the Chief Burgess, nor ever published in a newspaper. Held, that an exception taken to the re- to the point on the borough line mentionport on these grounds must be set aside.

ed in this report, but that this point is A road terminating at a point on the borough line has a sufficient public terminus.

now an enclosed field of Johnston Moore. Although said South Street has not yet been opened, It further appears that as far back as yet there is no ordinance to prevent its being opened, and therefore this road may terminate at said point. October 1870, it was enacted and ordained

After the determination of the question of damages the by the borough authorities that South Court can compel the opening of said South Street.

street in said borough be extended and DUBITER, whether, after the passivg of an ordinance to open a street, the appointment of viewers, assessment opened westwardly *


to the of damages, and confirmation of report, the town council can repeal the ordinance.

borough limits.” Immediately following Exceptions to Road Report.

this the “town council" appointed “three

disinterested freeholders” to assess damHis Honor, Judge Herman, being interested in property along the line of the ages and contributions, under the provi

sions of the act of 1868, P. L. 848, and the road, Hon. P. L. Wickes, of York county, viewers made their report which was heard the argument of there exceptions.

"approved and confirmed nisi" by the The ground of the exceptions is given councils on January 6, 1871. in the Court's opinion.

Appeals were taken from this award of WICKES, P. J. Seventy-five petitioners damages by three persons "aggrieved

“ have complained to the Court that they thereby," within the twenty days requirlabor under great inconvenience for want ed by the act, and these appeals are still of a public road to begin in the Harris- pending, undisposed of in this court. At burg and Chambersburg Turnpike at a a subseqnent meeting of the councils in certain point, and "bend at a point in the May 1871, it was enacted and ordained line of the borough of Carlisle, where that the ordinance "opening South street South street as ordered to be laid out and east and west to the borough line enacted opened by the ordinances of that borough into a law October 7, 1870, be and the would meet the line of said township of same is hereby repealed." South Middleton."

This ordinance however remains in Under this petition viewers were ap- choate-it was never transcribed into the pointed and they have reported that they ordinance book by the Secretary or signed have “proceeded to view said route and by the Chief Burgess, nor was it ever lay out for public use the following road,” | published in “at least one newspaper ten


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