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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 iipon 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 concluct 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."
ier bail been changed or that any con" In insurance company may waive a tract had been made with plaintift which con lition 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 Ius. Co., entire stranger to defendant in any ex222 la. 419; Simons v Safety Mutual inting contract or business relation. Fire Ins. Co., 27. l'a. 203: First National The language used by Mr. Justice Bank 1 Home Ins. Co., 27+ Pa. 133. Trevler, in rendering the opinion for the But the mere statement of opinio11, how-Siperior Court in the case of Primo v. ever, by an agent is not enough: Simon Safety Mutual Fire Insurance Co., 72 Pa. v Safety luual lire Ins. Co., 277 Pa. Sup. (t. 100-411, can be aptly used by 200, 203.
us: "The conduct of the agent was such We think the logic used by Mr. Tus-, as to make the plaintiff believe that tice Kephart, in rendering the opinion nothing further was required of [her] for the slijreme Court in the case of until the agent sent word.” “It is not Levinton v Obio l'armers Ins. Co., 267, contended by the plaintiff that [she ever l'a. 1.8.451-3, can be used in the analy- had any corresponience with the comsis of the case at bar.
pally at its home office or that (hel "Regard must be had to the meaning ever saw or poke to any office, general of the language emplovel, * * 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 he] relies solely upon a verbal in the terms of the contract, or by rea-promise of a local agent that he would sonalile 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 it-elf that he no attempt madle to prove that the powalone could not waive the provisionsers of the agent conferred on him by the therein.
company were other or greater than is was said by Judge Kephart, on page, those u-ually possessed by the local solic453, “The company may be estopped by iting agents of insurance companies. If the authorized acts of its agents and bille insured, under such circunstances, misrepresentations of its general agents," chose to rely on the voluntary promise of the local agent as [her] warrant for Rule to show cause why the widow's expunging from [the] contract some of exemption, in the estate of X. G. Meads, its important provisions and ignoring the deceased, should not be paid to the wid
) warnings therein given against such attempts to alter or waive the terms of the ow’s executor, in the Orphans' Court of writing on which [her claim is founded York Co., Pa. Rule absolute. [she places (herself in the position described by Agnew, J., in Maryland v.
James G. Glessner, for rule. Ins. Co., 71 Pa. 393, thus, 'If deceived or lulled into security, it was not by any
S. S. Laucks, contra. act of the company, but by trusting in
Wanner, P. J., September 24, 1924.--the mere opinion of one who had no authority to bind the company by any This is the petition of W. Grant Raub, such expression'.
executor of the will of Susan G. Meads, L'pon close inspection, the facts alleg deceased, (who was the widow of Nathed in the plaintiff's statement, in our opinion, do not require from the defend-aniel G. Meads, deceased) for an order
, 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.
the estate of said decedent. And now, June 23rd, 1924: The plain
It appears from the petition and antiff is required to file a new or amended
swer filed that Susan G. Veads, widow 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 tesshall be entered on the motion.
tator's executor for payment to her of
said widow's exemption of $500.00, 0. C. of
York Co. which was refused her. Demand for its Meads' Estate
payment to her executor was also made after her death, which was again re
fused. Decedent's estate--Competency of wit
It is conceded that the decedent's esness-Widow's exemption, payable to her tate is solvent; that it consisted of perexecutor-Practice.
sonal property, and that there were suffi
cient funds in the executor's hands, acWhere, after the decease of a widow her executor brought proceedings against her cording to the final account filed by him, husband's executor to compell payment of the widow's exemption, the husband's ex
to pay the widow's exemption. ecutor was incompetent to testify as to what occurred between him and the widow in re
The testimony of the accountant, as gard to her demand for payment to her of to what had occurred between him and her widow's exemption and as to the alleged payments by him to her on account of said the widow during her lifetime in regard exemption.
to her demand for payment of this exWhen a widow in her life time has duly made her demand on the executor of her emption fund to her, and as to the alleghusband's estate for payment of her exempled payment of certain sums to her, for tion fund, her administrator or executor, after her death, can collect it from such ex- which accountant claimed credit ecutor.
Where the whole of a decedent's estate has ! against the present demand, was properly been converted into money, a proceeding to
rejected by the auditor, on the ground of set aside by an appraisement the widow's exemption is unnecessary, the proper practice the incompetency of the accountant to is to make an immediate order for the payment of the same.
testify to matters occurring between him
and the widow in her lifetime. The evi- derstood and answered by an affirmance or
denial of the negligence, the results, and the dence however, even if admissible, would damage described, will not be stricken off have been ineffective against this claim,
even though the averments be verbose and
redundant. because the widow was entitled under the Electricity is dangerous agency, and testator's will to all the income of his those employing it are required to exercise
the highest practical degree of care. estate, and also to such part of the cor- The duty to inspect electric wires is clear,
and failure to perform it is negligence. pus thereof as she might need in her
Where a plaintiff's statement averred that lifetime.
the plaintiff was injured by coming in con
tact with a wire dangling from the defendIt is well settled that when a widow ant's pole, the court refused to strike off the
statement because it was not averred that has duly made her demand on the ex-said wire was the defendant's wire, or that ecutor of her husband's estate for pay-edge and consent of the defendant, or that
it was attached to said pole with the knowlment of her exemption fund, that her defendant knew that said wire dangled from administrator or executor, can after her failure to inspect having been charged.
its pole, negligence in maintenance and in death, collect it from such executor.
Motion to strike off the plaintiff's The facts of this case bring it clearly statement in Russel E. Martin, by his within the adjudications to that effect, I next friend and father, William T. Marand as the whole estate has been con-tin, and William T. Martin in his own verted into money, a proceeding to set right, v. Edison Light and Power Comaside by appraisement, the sum required pany, No. 86, April Term, 1924, in the is unnecessary, and an immediate order Court of Common Pleas of York Counfor the payment seems to be the property, Pa. Motion overruled. procedure. And now to wit, September 29th,
Cochran, W’illiams & Kain, for mo
tion. 1924: It is ordered that Clayton O. Meads, executor of the will of Nathan
Herbert V. Quail, J. Fred Schaffer iel G. Meads, deceased, do pay over to and R. P. Sherwood, contra. W. Grant Raub, executor of the will of Susan G. Meads, deceased, the sum of Ross, J., July 7, 1924.-The suit is five hundred dollars in full payment and brought in trespass. The statement alsatisfaction of the exemption fund of the leges carelessness on the part of defendwidow of Nathaniel G. Meads, deceased. ant corporation, which caused an injury
to Russell E. Martin, a minor son of
William T. Martin for which injury they, C. P. of
the plaintiffs, seek to recover damages Martin v. Edison Light and from the defendant. Power Co.
The allegations of carelessness and injury alleged in the statement are worded
as follows: Plaintiff's statement-lotion to strike
"1. The defendant, the Edison Light off-Redundant and verbose averments and Power Company aforesaid, on the - Electric wires-Necessity to inspect 20th day of July, 1922, and long prior electric wires-Averment of ownership
thereto, owned, maintained, operated and
controlled a certain system of wires, of wire.
transformers and appliances in the City A plaintiff's statement which states the of York, Pennsylvania, on a certain pubfacts which the defendant is required to meet 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
"O. On the 20th day of July, 1922, Alley as aforesaid.
and long prior thereto, the uninsulated
copper wire, mentioned in paragraph 8, "5. On July 20, 1922, and long prior was broken and hung, attached to dethereto, the defendant maintained, own- fendant's pole Big as aforesaid, in such ed, controlled and used in connection was dangling in the air within the limits
manner that said uninsulated copper wire with its system of wires, transformers of Clarke Alley, one end of said copper and appliances a certain pole numbered wire being two feet from the ground or B19, which pole was located upon said surface of said highway. Clark Alley, a public street near the cor
"10. On the 20th day of July, 1922, ner of West Street, in the City of York the said broken, hanging, uninsulated as aforesaid, and to which pole certain copper wire attached to defendant's pole wires, transformers and appliances of the Big was in contact with defendant's apdefendant were attached.
pliances 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 Bi9 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 Big 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.
"10/2. The defendant did not prior "612. The said transformer attached to July 20, 1922, properly inspect and re10 said pole B19 was, on the 20th day of pair its primary and secondary wires and July, 1922, and long prior thereto had its transformer attached to said pole been used to transform a primary cur- B19. rent of electricity (about 2300 volts) to
“1034. The defendant did not prior a secondary current of electricity (about
10 July 20, 1922, properly inspect its pole 110 volts.)
Big and repair or remove therefrom the “7. That some of the wires attached said broken, hanging uninsulated copper to pole Big were on July 20, 1922, and wire so attached to said pole B19. long prior thereto had been, what are "11. 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 Big as aforesaid, as 20th day of July, 1922, were, and long also the aforesaid defective condition of prior thereto had been, defectively insul- its primary and secondary wires and its ated.
transformer attached to said pole B19, "7'/2. The said transformer attached and the danger of injury to the traveling to said pole B19 was, on the 20th day of public; particularly, minors of tender July, 1922, and long prior thereto had age lawfully using said highway by combeen, defective.
ing in contact with said broken, uninsul
ated copper wire on pole B19 as afore"8. On the 20th day of July, 1922, said, charged with a high and dangerous and long prior thereto, a certain uninsul- current of electricity, from defendant's ated copper wire was attached to defend-'wires and appliances.
"I2. 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 "s" 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 ing, broken, uninsulated copper wire at- tains no averment that the wires which tached to defendant's pole Big 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.
wire was attached to said pole with the "13. Russell E. Martin aforesaid, by knowledge and consent of the defendant reason of his coming in contact with the or any knowledge of the fact that any said hanging, broken, uninsulated copper wire 'dangled' from said pole.” wire as hereinbefore set forth, was great- The first reason cannot be sustained ly shocked, stunned and the right hand because, however "verbose" or "redundof the said Russell E. Martin and other ant" the paragraphs referred to may apparts of his body were severely burned pear to the defendant, they state the and injured.
facts which the defendant is required to "'14. By reason of the burns so re-I 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 meet and refute the charges at a trial. near the knuckle joints. The tendons If more relevant information is required, and muscles of the thumb, index and a more specific statment of facts can be second fingers of the right hand were so called for. severely burned and injured that the The Practice Act of 1915 does not rethumb, index and second fingers of the quire the courts to regulate the rhetoric said right hand of him, the said Russell used in the construction of pleadings. E. Martin, have become ankylosed and "Id certum est quad certum reddi proare permanently stiff and the said Rus- test." If the language used in the statesell E. Martin has suffered the total lossment is plain enough to be understood of the use of his right hand.
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
care.” mainder of his life great mental an
"The duty to inspect electric wires is guish.”
clear, and failure to perform it neglig
ence:" Sebring v. Bell Telephane Co., The defendant has filed a motion to 275 Pa. 131. strike off the statement.
The reasons And now, July 7th, 1924: The motion upon which the motion to strike off is to strike off plaintiff's statement is disbased, are worded as follows: