No. 15

VOL. IV.

THURSDAY, JUNE 14, 1883.

QUARTER SESSIONS.

Q. S. of

Road in Ridley.

Delaware County.

Road Law-Defective Report.

When damages are assessed by a road jury the report must set out that the lands against which the damages 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 should see occasion to lay out the same, to inquire of and vacate" the old road, a report which does not vacate the old road will be defective.

Exceptions to report of Jury to view,

&c.

The opinion of the Court in this case sets out all the material facts.

June 4, 1883. CLAYTON, P. J. The report is defective in not setting forth that the lands of Hugh Boyd, against which the viewers have assessed damages, are near and adjacent to said road, or adjoining the same. This is necessary for the protection of the person to whom the damages are awarded. It may be that Mr. Boyd might plead the irregularity in the proceedings against him. Whether he could necessarily do so, is not now decided. When the question arises in such a way that the judgment of the court will be final and binding on the parties we will decide that question. The suggestion of the defect and the doubt as to its effect is enough to avoid the report.

I am also of opinion that by the peculiar language of the petition and order of court to the viewers, they were bound to vacate the old road if they granted the new one. The language af the petition and order is as follows: "If they (the viewers) should see occasion to lay out the same, to inquire of and vacate the public road now opened known as the Amosland road from the point of the beginning of the proposed road to the point where the said Academy avenue intersects the said public road known as the Amosland road, which last mentioned road will by reason of the laying out of the proposed road become useless. The prayer of the

The report is set aside.

Kennebec Ice and Coal Co. v. Wilmington and Northern R. R. Co.

Right to sue in another's name without consent-Subrogation-Insurer and Insured-Warrant of attorney-What is a sufficient warrant.

Where insurance companies have paid losses upon property destroyed by fire through the alleged negligence of a third party, they may bring suit against the wrongdoer, in the name of the assured, without his consent, and the assured cannot prevent such use of his name, or, by a release to the defendant, defeat the action.

In such case, the insurers are not obliged to wait the pleasure of the assured whether he will bring suit.

Seven insurance companies having paid losses upon the property of K., which was burned through the alleged negligence of W., instituted suit in the name of K., but without K.'s consent. Warrants of attorney having been filed, executed by the several insurance companies a rule was taken by defendant to show cause why proceedings should not be stayed until a letter of attorney was filed executed by K. An answer to the rule was filed showing the payment of the losses by the insurance companies, and the refusal of K. to institute suit or join in the suit as instituted, or authorize the use of K.'s name as plaintiff. HELD, That the warrants of attorney filed were sufficient'

Sur rule by defendant upon "the attorney who filed the narr. in this case," to file their warrant of attorney, proceedings to stay.

The attorneys of record for plaintiff had, under a prior rule to file warrant of attorney, filed warrants of attorney executed by seven certain fire insurance companies who claimed the right to bring this action of trespass on the case in the name of the Kennebec Ice and Coal Co. to recover damages from the defendant, through whose alleged negligence the ice-house of the Kennebec Ice and Coal Co. was destroyed by fire, whereby the said insurance companies were compelled to pay and did pay to the said ice and coal company certain amounts assured thereon.

In answer to the present rule, the attorneys of record for plaintiff set forth that the President of the said Kennebec Ice and Coal Co. had been requested by the said insurance companies to bring suit, for their use, against the defendant, but refused so to do or to authorize them to

sue in his name, giving as a reason that the said ice company is dependent upon the railroad company defendants for its supplies of ice. The respondents insisted that the insurance companies had the right to sue in the plaintiff's name without his consent, and that the warrants of attorney executed by the insurance companies, and already filed, were sufficient in law.

It appeared that in addition to the seven insurance companies above referreed to, the burned premises were insured in two other companies, who had not paid their losses, but who had knowledge of the bringing of this suit.

Wm. M. Hayes, for the rule.

This suit being brought in the name of the Kennebec Coal and Ice Co. against its consent, a recovery would not be a bar to a second action brought by its direction. The insurance companies are not named as equitable plaintiffs, and warrants of attorney executed by them have no affect whatever.

Hyneman & Cohen and W. T. Barbercontra. :

Where property insured is destroyed by the negligence of a third party, the insurer by payment of the loss, becomes subrogated to the rights of the assured to the extent, of the sum paid under the policy, and may bring an action in the name of the assured for his own benefit with or 'without the consent of the assured, and a release by the assured would be no defence to such a suit:

Wood on Fire Insurance, secs. 473, 474
Flanders on Fire Insurance, 648
Mason v. Sainsbury, 3 Doug. 51

Western Railroad Corporation, 13 Metc. 108 Monmouth Fire Insurance Co. v. Hutchinson, 21 N. J. Eq. 117

Hendrickson v. The Philada. and Reading Railroad Company, 8 Leg. Gaz. 125

S. C., 23 Pitts 147

Hall v. Railroad Company, 13 Wallace 357

Peoria Marine Fire Insurance Co. v. Frost, 37 Ill. 333

S. C., 5 Bennett's Fire Insurance Cases, 54

nebec Ice and Coal Company against the Wilmington and Northern Railroad Company.

The plaintiff was the owner of an icehouse, situate on the line of the defendant's railroad in this county, which the declaration alleges was set fire to and burned through the negligence of the defendant, and the ice with which it was stored was destroyed, whereby the plaintiff suffered damage, etc.

The defendant obtained a rule on the attorneys of record for the plaintiff to file their letter of attorney, and also took a rule to show cause why the proceedings shall not be stayed until a letter of attorney is filed executed by the legal plaintiff.

The attorneys of record for the plaintiff presents letters of attorney from seven fire insurance companies and say that the property burned was insured by the plaintiff with them, and that they have paid to the plaintiff the insurance moneys amounting to a large sum, to wit, the sum of $15,855; that the plaintiff declined to institute suit against the defendant to recover the damages occasioned by its negligence, or to join with the insurance companies in a suit, or to authorize them to use the name of the plaintiff, although requested so to do, and that, upon such declination, they caused this action to be instituted in the name of the Kennebec Ice and Coal Company, and they ask that the letters of attorney thus presented by them shall be accepted as sufficient to authorize them to conduct the legal proceedings thus instituted.

This presents the question whether these fire insurance companies have, under the circumstances stated, the right to use the name of the plaintiff.

Where property is destroyed or injured

S. C., 5 Bennett's Fire Insurance Cases, 341
Ætna Fire Insurance Co. v. Tyler, 16 Wend. 397
Timan v. Leland. 9 Hill 237

Gracie v. N. Y. Insurance Company, 8 John 245
Whitehead v. Hughes, 2 C. R. & M. 318
Phillips v. Clageti, 11 M. & W. 84.

The Kennebec Ice and Coal Company having declined to bring suit, and having had notice of the institution of this suit, their rights will be determined in this action.

The rights of the two insurance companies, which have not paid any losses, are not prejudiced, inasmuch as they have had notice of this suit.

May 7, 1882. FUTHEY, P. J. This action is instituted in the name of the Ken

that the assured has a remedy against him therefore, the insurer, by payment of the loss, becomes subrogated to the rights of under the policy. By accepting payment the assured to the extent of the sum paid from the insurer, the assured implicity assigns his right of indemnity from a party liable to the insurer. It is clear that these insurance companies, having, as they allege, paid the insurance, have a right, if the fire was caused by the negligence of the defendant, to require that the defendant shall be made liable so that they may be reimbursed the loss occasioned them by such negligence. If the insur

ance paid covers but a part of the loss really incurred, then both the assured and the insurer have an interest in the amount to be recovered.

The insurers, however, having paid their moneys, and by reason thereof, having been thus subrogated to the rights of the assured to that extent, cannot be deprived of their right to reimbursement from the wrong-doer by reason of the assured failing to bring suit. They have such an interest as authorizes them to institute suit in the name of the assured, and they may thus use his name without his consent, and the assured cannot prevent such use of his name, or, by a release to the defendant, defeat the action. They are not obliged to wait the pleasure of the assured whether he will bring suit.

If the assured has sustained loss beyond that paid by the insurance companies here represented, the entire liability of the de

fendant can be determined in this suit:

Wood on Fire Insurance, secs. 473, 474
Flanders on Fire Insurance, 648

Hart v. Western Railroad, Corporation, 13 Metcalf 108 Monmouth County Fire Insurance Co. v. Hutchinson 21 N. J. Eq. 17

Hall v. Railroad, 13 Wallace 367

Easton v. Sainsbury, Doug. (26 E. C. L. R.) 61.

The allegation of the defendant that their company is threatened with suit by the plaintiff in the State of Delaware, cannot affect the jurisdiction of this Court of the cause of action which has already attached, instituted by parties having a right to use the name the plaintiff.

We think the attorneys on record for the plaintiff have filed sufficient powers of attorney, and that the rule to show cause why proceedings shall not be stayed must be dismissed. We will, however, require the insurance companies to give security for costs.

SUPREME COURT.

Ludwig's Appeal.

A widower of fifty-seven years of age entered into an ante-nuptial contract with a destitute widow of sixtythree, whereby the latter, in consideration of a good and comfortable support during her life and a decent Christian burial, agreed to release all claim in and to her intended husband's estate. HELD That the contract was upon a sufficient consideration, and that on the husband's death the widow was accordingly not entitled to $300 exemption Appeal of Ephriam Ludwig from a decree of the Orphans' Court of Mercer county, dismissing exceptions to an appraisement of three hundred dollars' worth of property, set apart for the use of Eva, widow of Abram Ludwig, deceased. The facts were as follows: About July

1, 1867, Abram Ludwig, the father of Ephriam Ludwig and other children, being a widower, and possessed of property worth nearly $15,000, made a proposal of marriage to Eva Rickert, a poor and destitute widow. The same was accompanied by a request for an ante-nuptial agreement. The said Eva Rickert accepted the proposal, and assented to the request.Thereupon the two entered into a written agreement, whereby the said Eva Rickert, for the sum of one dollar, and "In consideration of her comfortable support and maintenance during life, and a decent Christian burial at her death," agreed "to relinquish, remise and quit-claim all dower and thirds, and right and title of dower and thirds, and all other right, title, interest, claim or demand whatsoever, in law or equity, that she may acquire in the real and personal estate of the said Abram Ludwig, in case the said intended marriage be had and solemnized." On July 3, 1867, they were married. On November 25, 1881, Abram Ludwig died intestate.After his death, ample provision was made for the "comfortable maintenance and support" of the widow, and accepted by her for two months afterwards, when she refused further to accept the terms and provisions of the said ante-nuptial settlement, and demanded her dower and rights as widow, under the intestate laws. At her request, appraisers were appointed, who appraised and set apart property to the value of $300 for her separate use.To such appraisement and exemption Ephriam Ludwig, one of the children of Abram Ludwig, excepted.

Subsequently the court, McDERMITT, P. J., dismissed the exceptions, and confirmed the said appraisement and exemption. Whereupon Ephriam Ludwig took this appeal, assigning for error the decree of the court.

December 30, 1882. PAXSON, J. It was decided in Tiernan v. Binns, II Norris 248, that when a woman about to marry relinquishes by an ante-nuptial contract all right of dower, and all interest of any kind whatever, to which she might be entitled in the estate of her intended husband by reason of her marriage, she waives her right to $300 of her husband's estate under the Act of April 14, 1857.

It was contended, however, that this case does come within the rule of Tiernan v. Binns, for the reason that the ante-nuptial contract was a fraud upon the wife;

It was

that the provision contained therein for the latter was inadequate and disproportioned to the means of her husband, and that the case comes within the rule laid down in Kline's Estate, 14 P. F. Smith 122, where it was said that "while it might not be necessary to show affirmatively that there was a full disclosure of the property and circumstances of each, yet if the provision secured for the wife was unreasonably disproportionate to the means. of the intended husband, it raised the presumption of designed concealment, and threw upon him the burden of proof: Kline's Estate was well decided. recognized in Tiernan v. Binns, and we have no disposition to depart from it. But we are unable to see its application to the present case. It must be remembered that in Kline's Estate the auditor found the fact that the wife had not only signed the ante-nuptial contract in ignorance of her rights, but that the extent of her husband's property had been concealed from her at the time of the execution of the contract. How stand the facts here?Abram Ludwig was fifty-seven years of age, a widower with eleven children, when he entered into this ante-nuptial contract with Mrs. Eva Rickert, the appellee The latter was at that time a destitute widow sixty-three years of age.Abram was then possessed of real and personal estate worth about $14,000.The contract itself recited the facts that "the said Abram Ludwig is seized of lands and tenements situate in said county of Mercer; also certain personal property in said county," and then provides that the said Abram and his heirs, executors and administrators, shall give and furnish the said Eva Rickert a good and comfortable support in health and in sickness for and during her life, and at her death, furnish

her with a decent and Christian burial." This, with the nominal sum of one dollar is all the benefit Mrs. Rickert took under the contract.

The consideration is ample to sustain the contract if it is free from fraud or concealment.

Upon this point we have the uncontradicted testimony of Judge MAXWELL, who drew the paper. He says; "I wrote this ante-nuptial contract. My recollection is the parties and myself were alone in the office at the time this contract was written.

I read it to the parties before it was executed. After I read this article I turn

ed to Mrs. Rickert and said to her: "Now, Mrs. Rickert, if you sign this, you get nothing from Mr. Ludwig's estate except your keeping and your decent Christian burial." I said further, "I want you to understand what you are doing, for Mr. Ludwig has a large property; how much I don't know, but whatever it is, you will have no interest in it at his death—that is what the paper says." She replied to me that she understood it."

The widow was examined without objection on her own behalf, but she does not say that she did not understand the paper, or that she was deceived or misled as to the extent of her husband's estate; nor does she make any complaint of illtreatment by the children after her husband's death. She moved away from her home because her son-in-law desired her to live with him.

There is not a scintilla of evidence to bring this case within the doctrine of Kline's Estate. If we regard the provision for the widow as inadequate, it merely throws the burden of proof upon her husband's representatives, and it has been fully met. From a sentimental standpoint the provision for the wife would not seem to be generous. But a widower of fifty-seven, with eleven children, seldom contracts a second marriage from mere sentiment.

He may have thought it was enough, in view of her age and position, to give her a comfortable home, a decent support during her life, and a Christian burial after her death. At any rate it is very clear she was of that opinion, and that is the end of the case.

It would have been wiser to have fixed a sum certain for the support of the widow, The failure to do so, however, does not take away the consideration of the contract. The estate is bound for her support and, in case of disagreement about details or amounts, the Orphans' Court has ample power in the premises.

All of the assignments except the last, are to errors in the opinion of the court.They need not be discussed for obvious reasons. The last assignment is to the confirmation of the appraisement of the property set apart for the widow under the Act of Assembly. This assignment is sustained.

Decree reversed at the costs of the appellee, and it is ordered that the record be remitted for further proceedings.

Road in South Middleton Township. Road Law--Terminus--Repeal of Ordinance.

A petition for a road set forth that the road was to "end at a point in the line of the borough of Carlisle, where South Street as ordered to be laid out and opened by the

ordinances of that borough would meet the line of said township of South Middleton." The report set forth that they had "laid out for public use the following road," describing the termini as in the petition. By a borough ordinance three viewers were appointed, who laid out South Street and assessed damages. Appeals were taken from this award of damages, and are still undetermined. At a subsequent meeting the town council passed an ordinance repealing the 'opening ordinance,' but this repealing act was never transcribed in the ordinance book or signed by the Chief Burgess, nor ever published in a newspaper. HELD, that an exception taken to the report on these grounds must be set aside.

A road terminating at a point on the borough line has a sufficient public terminus.

Although said South Street has not yet been opened, yet there is no ordinance to prevent its being opened, and therefore this road may terminate at said point.

After the determination of the question of damages the Court can compel the opening of said South Street.

DUBITER, whether. after the passing of an ordinance to open a street, the appointment of viewers, assessment of damages, and confirmation of report, the town council can repeal the ordinance.

Exceptions to Road Report.

His Honor, Judge Herman, being interested in property along the line of the road, Hon. P. L. Wickes, of York county, heard the argument of there exceptions.

The ground of the exceptions is given in the Court's opinion.

the termini being described as in the petition.

To this report exceptions were filed, three in number-the first alone was argued the second and third were not pressed.

The exception argued is as follows: "this report is excepted to because the eastern terminus thereof is not a public point and is in the middle of a field. South street has not been opened to the borough line and there is not even an ordinance extant requiring it to be opened.'

Certain "admitted facts" were presented on the argument from which it appears that South street, in the borough of Carlisle, was never opened from its west end to the point on the borough line mentioned in this report, but that this point is now an enclosed field of Johnston Moore. It further appears that as far back as October 1870, it was enacted and ordained by the borough authorities "that South street in said borough be extended and * * * opened westwardly * to the borough limits." Immediately following this the "town council" appointed "three disinterested freeholders' to assess dam

ages and contributions, under the provi

sions of the act of 1868, P. L. 848, and the viewers made their report which was "approved and confirmed nisi" by the councils on January 6, 1871.

Appeals were taken from this award of damages by three persons "aggrieved thereby," within the twenty days requir

Under this petition viewers were appointed and they have reported that they have "proceeded to view said route and lay out for public use the following road,"

pending, undisposed of in this court. At a subsequent meeting of the councils in May 1871, it was enacted and ordained that the ordinance "opening South street east and west to the borough line enacted into a law October 7, 1870, be and the same is hereby repealed."

This ordinance however remains in choate-it was never transcribed into the ordinance book by the Secretary or signed by the Chief Burgess, nor was it ever published in "at least one newspaper ten