It has been decided that, "An insur- but it is not contended that there was ance company may waive a compliance any authorized act of Stallsmith, or that with any condition of a policy to be per- there was any misrepresentation by the formed and observed by the assured, ex- general agent. cept when the insured by the act loses The statement of claim does not defihis insurable interest. The condition is nitely allege that the defendant received inserted in the policy for the benefit of any notice of any change in any contract the insurer, and hence there is nothing made by it with the plaintiff, but merely to prevent the company from waiving it avers that the sub-agent, Stallsmith, sent whenever it may desire. This may be a letter to the defendant's representadone expressly or by implication; and in tives, to which no reply was received; either case, the company cannot there and the only other thing alleged in the after insist upon a performance of the statement upon which proof could be condition. The law will not permit it to furnished at the trial was that the letter mislead or deceive the holder of its pol-sent was regularly posted. That proof icy by any act or conduct on its part, would not be sufficient to warrant a jury and thereafter, to its detriment, insist in finding that the defendant company upon full performance of a condition had any notice that the terms of the polwhich it has waived." icy had been changed or that any con“An insurance company may waive a tract had been made with plaintiff which condition in a policy by parol, although would impose any obligation on it, the it contains a stipulation that there shall defendant, to assume an indemnity for be no waiver of any condition except by any accident which might occur to one an express agreement endorsed on the who, so far as we are informed, was an policy": Bush v Hartford Fire Ins. Co., entire stranger to defendant in any ex222 Pa. 419; Simons v Safety Mutualisting contract or business relation. Fire Ins. Co., 277 Pa. 203; First National The language used by Mr. Justice Bank v Home Ins. Co., 274 Pa. 133. Trexler, in rendering the opinion for the But the mere statement of opinion, how-Superior Court in the case of Primo v. ever, by an agent is not enough: Simons Safety Mutual Fire Insurance Co., 72 Pa. v Safety Mutual Fire Ins. Co., 277 Pa. Sup. Ct. 409-411, can be aptly used by 200, 203. us: "The conduct of the agent was such We think the logic used by Mr. Jus-as to make [the plaintiff] believe that tice Kephart, in rendering the opinion nothing further was required of [her] for the Supreme Court in the case of until the agent sent word." "It is not Levinton v Ohio Farmers Ins. Co., 267 contended by the plaintiff that [she] ever Pa. 448, 451-3, can be used in the analy-had any correspondence with the comsis of the case at bar. pany at its home office or that [she] "Regard must be had to the meaning ever saw or spoke to any office, general of the language employed, * * * the agent, adjuster or other person specially situation and uses of the property, and delegated to adjust and settle the loss. the nature of the contract as evidenced To excuse [her] own performance of the by the policy. Recovery can be had plainly expressed covenants of the cononly when the loss is brought fairly with- tract [she] relies solely upon a verbal in the terms of the contract, or by rea-promise of a local agent that he would sonable intendment covered by it." do whatever was necessary and that the The language used by Stallsmith, the insured need do nothing. There was no local agent, was nothing more than an agreement of any kind endorsed on the expression of his opinion, and the plain-policy to vary in any way its terms, and tiff had notice in the policy itself that he no attempt made to prove that the pow alone could not waive the provisions ers of the agent conferred on him by the company were other or greater than As was said by Judge Kephart, on page, those usually possessed by the local solic453, "The company may be estopped by iting agents of insurance companies. If the authorized acts of its agents and by the insured, under such circumstances, misrepresentations of its general agents," chose to rely on the voluntary promise therein. of the local agent as [her] warrant for expunging from [the] contract some of its important provisions and ignoring the warnings therein given against such attempts to alter or waive the terms of the writing on which [her] claim is founded [she] places [herself] in the position described by Agnew, J., in Maryland v. Ins. Co., 71 Pa. 393, thus, 'If deceived or lulled into security, it was not by any act of the company, but by trusting in the mere opinion of one who had no authority to bind the company by any such expression'.” Rule to show cause why the widow's exemption, in the estate of N. G. Meads, deceased, should not be paid to the widow's executor, in the Orphans' Court of York Co., Pa. Rule absolute. James G. Glessner, for rule. S. S. Laucks, contra. Wanner, P. J., September 24, 1924.This is the petition of W. Grant Raub, executor of the will of Susan G. Meads, Upon close inspection, the facts alleg-deceased, (who was the widow of Nathed in the plaintiff's statement, in our aniel G. Meads, deceased) for an order opinion, do not require from the defend ant a responsive answer, for they do not on the executor of the will of said Nathestablish any such contract or contractu-aniel G. Meads, deceased, to pay to the al relation between the parties as would petitioner the sum of $500.00, said sum warrant a verdict. The questions of law being the widow's exemption fund out of raised by the defendant's affidavit are sustained. shall be entered on the motion. the estate of said decedent. It appears from the petition and answer filed that Susan G. Meads, widow And now, June 23rd, 1924: The plaintiff is required to file a new or amended statement within fifteen days from this date, and make service thereof on de-of Nathaniel G. Meads, deceased, in her fendant, as required by law, or judgment lifetime, made a demand upon said testator's executor for payment to her of said widow's exemption of $500.00, York Co. which was refused her. Demand for its payment to her executor was also made after her death, which was again refused. O. C. of Meads' Estate Decedent's estate--Competency of witness-Widow's exemption, payable to her executor-Practice. Where, after the decease of a widow her executor brought proceedings against her husband's executor to compell payment of the widow's exemption, the husband's executor was incompetent to testify as to what occurred between him and the widow in regard to her demand for payment to her of her widow's exemption and as to the alleged payments by him to her on account of said exemption. It is conceded that the decedent's estate is solvent; that it consisted of personal property, and that there were sufficient funds in the executor's hands, according to the final account filed by him, to pay the widow's exemption. The testimony of the accountant, as to what had occurred between him and the widow during her lifetime in regard to her demand for payment of this exemption fund to her, and as to the alleged payment of certain sums to her, for which accountant claimed credit as against the present demand, was properly rejected by the auditor, on the ground of the incompetency of the accountant to testify to matters occurring between him and the widow in her lifetime. The evi- derstood and answered by an affirmance or even though the averments be verbose and redundant. Electricity is a dangerous agency, and those employing it are required to exercise the highest practical degree of care. The duty to inspect electric wires is clear, Where a plaintiff's statement averred that the plaintiff was injured by coming in contact with a wire dangling from the defendant's pole, the court refused to strike off the statement because it was not averred that ex-said wire was the defendant's wire, or that pay-edge and consent of the defendant, or that it was attached to said pole with the knowldefendant knew that said wire dangled from failure to inspect having been charged. its pole, negligence in maintenance and in It is well settled that when a widow has duly made her demand on the ecutor of her husband's estate for ment of her exemption fund, that her administrator or executor, can after her death, collect it from such executor. Motion to strike off the plaintiff's statement in Russel E. Martin, by his next friend and father, William T. Martin, and William T. Martin in his own right, v. Edison Light and Power Company, No. 86, April Term, 1924, in the The facts of this case bring it clearly within the adjudications to that effect, and as the whole estate has been converted into money, a proceeding to set aside by appraisement, the sum required is unnecessary, and an immediate order Court of Common Pleas of York Counfor the payment seems to be the property, Pa. Motion overruled. procedure. A plaintiff's statement which states the facts which the defendant is required to meet Cochran, Williams & Kain, for mo tion. Herbert V. Quail, J. Fred Schaffer and R. P. Sherwood, contra. Ross, J., July 7, 1924.-The suit is brought in trespass. The statement alleges carelessness on the part of defendant corporation, which caused an injury to Russell E. Martin, a minor son of William T. Martin for which injury they, the plaintiffs, seek to recover damages. from the defendant. The allegations of carelessness and injury alleged in the statement are worded as follows: "4. The defendant, the Edison Light and Power Company aforesaid, on the 20th day of July, 1922, and long prior thereto, owned, maintained, operated and controlled a certain system of wires, transformers and appliances in the City of York, Pennsylvania, on a certain pub at the trial in such language as can be un- lic street in said city, called and known as Clark Alley, which were hung and sus-ant's pole B19 located as aforesaid on pended over, along and upon certain Clark Alley, a public street, in the City poles owned, maintained and controlled of York, Pennsylvania. by said defendant on and over said Clark Alley as aforesaid. "5. On July 20, 1922, and long prior thereto, the defendant maintained, owned, controlled and used in connection with its system of wires, transformers and appliances a certain pole numbered B19, which pole was located upon said Clark Alley, a public street near the corner of West Street, in the City of York as aforesaid, and to which pole certain wires, transformers and appliances of the defendant were attached. "9. On the 20th day of July, 1922, and long prior thereto, the uninsulated copper wire, mentioned in paragraph 8, was broken and hung, attached to defendant's pole B19 as aforesaid, in such manner that said uninsulated copper wire was dangling in the air within the limits of Clarke Alley, one end of said copper wire being two feet from the ground or surface of said highway. "10. On the 20th day of July, 1922, the said broken, hanging, uninsulated copper wire attached to defendant's pole B19 was in contact with defendant's appliances also on said pole B19, and said broken, hanging, uninsulated copper wire "6. That some of the wires attached was charged with a high and dangerous to said pole B19 were on July 20, 1922, current of electricity which was comand long prior thereto had been, what are municated to the said broken wire from known as primary wires and were used defendant's wires, transformers and apby defendant to transmit approximately pliances, then attached to defendant's 2300 volts of electricity. The said prim-pole B19 located on Clark Alley, a pubary wires on the 20th day of July, 1922, lic highway, in the City of York, Pennwere, and long prior thereto had been, sylvania, as aforesaid. defectively insulated. "6%. The said transformer attached to said pole B19 was, on the 20th day of July, 1922, and long prior thereto had been, used to transform a primary current of electricity (about 2300 volts) to a secondary current of electricity (about 110 volts.) "10. The defendant did not prior to July 20, 1922, properly inspect and repair its primary and secondary wires and its transformer attached to said pole B19. "1034. The defendant did not prior to July 20, 1922, properly inspect its pole B19 and repair or remove therefrom the "7. That some of the wires attached said broken, hanging uninsulated copper to pole B19 were on July 20, 1922, and wire so attached to said pole B19. long prior thereto had been, what are "II. That defendant knew, or by known as secondary wires used by de-reasonable and proper inspection should fendant to transmit approximately 110 have known, the dangerous position of volts of electricity for commercial light- said broken, uninsulated, copper wire ating. The said secondary wires on the tached to its pole B19 as aforesaid, as 20th day of July, 1922, were, and long prior thereto had been, defectively insul ated. "72. The said transformer attached to said pole B19 was, on the 20th day of July, 1922, and long prior thereto had been, defective. also the aforesaid defective condition of its primary and secondary wires and its transformer attached to said pole B19, and the danger of injury to the traveling public; particularly, minors of tender age lawfully using said highway by coming in contact with said broken, uninsulated copper wire on pole B19 as aforesaid, charged with a high and dangerous current of electricity, from defendant's "8. On the 20th day of July, 1922, and long prior thereto, a certain uninsulated copper wire was attached to defend- wires and appliances. "12. Russell E. Martin, a minor and "First: Because the said plaintiffs in infant of tender years, to wit, eight years the said statement do not set forth in a of age, on the 20th day of July, 1922, concise and summary form the material passed over and along said Clark Alley, facts upon which the said plaintiff's rely, using due care on his part, and while in that the paragraphs of said statement traveling on foot along said Clark Alley after paragraphs “1” and “2” are verbose as aforesaid, he, the said Russell E. Mar- and redundant. tin, came in contact with the said hang- "Second: That said statement coning, broken, uninsulated copper wire at- tains no averment that the wires which tached to defendant's pole B19 as afore- they allege 'dangled' 'from said pole B19 said, charged as aforesaid with electricity was the defendant's wire or that said from defendant's wires and appliances. "13. Russell E. Martin aforesaid, by reason of his coming in contact with the said hanging, broken, uninsulated copper wire as hereinbefore set forth, was greatly shocked, stunned and the right hand of the said Russell E. Martin and other parts of his body were severely burned and injured. wire was attached to said pole with the knowledge and consent of the defendant or any knowledge of the fact that any wire 'dangled' from said pole." The first reason cannot be sustained because, however "verbose" or "redundant" the paragraphs referred to may appear to the defendant, they state the facts which the defendant is required to "14. By reason of the burns so re-meet at the trial, in such language as can ceived by Russell E. Martin as hereinbe-be understood and answered by an affore set forth, the third and fourth fin- firmance or denial of the negligence, the gers of the right hand of him, the said results, and the damage described, or Russell E. Martin, were amputated at or near the knuckle joints. The tendons and muscles of the thumb, index and second fingers of the right hand were so severely burned and injured that the thumb, index and second fingers of the said right hand of him, the said Russell E. Martin, have become ankylosed and are permanently stiff and the said Russell E. Martin has suffered the total loss of the use of his right hand. meet and refute the charges at a trial. If more relevant information is required, a more specific statment of facts can be called for. The Practice Act of 1915 does not require the courts to regulate the rhetoric used in the construction of pleadings. "Id certum est quad certum reddi protest." If the language used in the statement is plain enough to be understood and answered or met by a denial or re"15. By reason of the burns so re-butting evidence at a trial so that an isceived by Russell E. Martin he, the said sue can be formed, we think the requireRussell E. Martin, was permanently in- ments of section 5 and 9 of the Practice jured and mained, disfigured and inca-Act of 1915 is complied with. pacitated for the ordinary duties of life. We cannot sustain the second reason "16. By reason of the burns so re- because public service corporations which ceived by Russell E. Martin, he, the said use public highways on or over which Russell E. Martin, suffered great bodily they hang or suspend charged wires, pain and still continues to suffer such should inspect. "Electricity is a dangerous agency and pain. The said Russell E. Martin by reason of the said injuries suffered and those employing it are required to exwill continue to suffer during the re-ercise the highest practical degree of mainder of his life great mental anguish." The defendant has filed a motion to strike off the statement. The reasons upon which the motion to strike off is based, are worded as follows: care." "The duty to inspect electric wires is clear, and failure to perform it negligence:" Sebring v. Bell Telephane Co., 275 Pa. 131. And now, July 7th, 1924: The motion. to strike off plaintiff's statement is dis missed. |