in the petition and answer, we are of opinion | to contribute to her support, and directed the that while the vendor is justly liable to a portion balance in the hands of the accountant to be paid of the expenses incurred through the mistake made to Calixte Cremers, the husband of decedent. and delay in perfecting the title, yet the amount He also surcharged the accountant with the colclaimed by the vendee includes costs, and ser- lateral inheritance tax which he had paid. vices of the conveyancer, for which the petitioner would not be liable, in default of express or implied agreement, either at law, or by the custom of conveyancers, and cannot therefore be allowed. To these rulings exceptions were filed by the accountant. B. H. Brewster, for the accountant. The Act of May 4, 1855, § 2 (Purd. Dig. 1008, pl. 24), covers our case. This man's habits were so bad that his wife could not bear with him longer, and made distinct provision in her will that he should not take of her estate—she was entirely protected by the Act. By its operation he lost all claim to her property, so she could will it as she pleased. The petition is granted, and a decree will be made for the payment of the purchase money to the petitioner, less the amount agreed to be deducted therefrom. Upon failure so to do, execution to issue. Opinion by HANNA, P. J. October 23, 1878. contra. Cremers's Estate. Husband and wife-When earnings of wife are her separate estate-What acts of husband create forfeiture of his rights in his wife's estate-Act of May 4, 1855-Act of April 3, 1872. Sur exceptions to adjudication. Upon the adjudication of the account of the executor of Margaret C. Cremers, deceased, the following facts appeared : The decedent died March 28, 1864, leaving a will, bearing date the same day, appointing C. H. A. Esling, executor, and after certain pecuniary legacies gave and bequeathed the residue of her estate to her sister. The will further pro vided: Black v. Tricker, 9 Sm. 13. W. Dougherty (with whom was D. Dougherty), "I do not desire any construction to be placed upon any clause of this, my will, by which any of my said estate shall accrue to my husband, Calixte Cremers." The auditing Judge (HANNA, P. J.) found the above facts, and also that husband did not desert his wife at any time, nor neglect or refuse Admitting the profligacy and drunkenness of the husband, the property must be acquired subseUnder the second section of the Act of April 3, quent to such conduct on the part of the husband. 1872 (Purd. Dig. 1010, pl. 38), she must first make petition before she can have the benefit of the operative part of the Act. She really endeavored to act under the Act of 1872. Black v. Tricker was decided in 1868, before the Act of 1872 was passed. Whatever may be thought as to the evidence with regard to the intemperate habits of the husband, it is clear that there was not that failure on his part to contribute to the wife's support, which,. under the Act of 1855, must concur with drunkenness, in order to deprive him of his right to The decedent and her husband were natives of France, and in 1868 came to this city, where she her personal property in case of her death withestablished herself as a mantuamaker, her hus-out issue. The act provides that such right shall band working at his trade, as a "cutter," for be forfeited only where from "drunkenness, provarious tailors, and from time to time handing fligacy, or other causes" the husband “shall negpart of his wages to her. The mantuamaking lect, or refuse to provide for his wife, or shall business was carried on in the names of both. It desert her." was in evidence that at various times the habits of the husband were very irregular; and that in August, 1873, decedent provided him with funds to go to Europe to bring back with him a niece, who was to be apprenticed in the mantuamaking trade. Before he returned home his wife died; and he, at the audit, made claim to the balance found in the accountant's hand. We need not therefore consider whether, since the Act of 1872, the decedent became entitled to her separate earnings, in the absence of a petition to the Common Pleas, as provided by that Act; because the husband's right to her property at her death was not at all affected by or dependent on the source from which she had derived it, and her will was inoperative to take it from him. Exceptions dismissed, and adjudication confirmed. Opinion by PENROSE, J. November 2, 1878. THE COURT. This case has been very carefully considered by the auditing Judge, and but little need be added to what is so well said in the adjudication. [No. 18. evening, her son, a nere lad, accompanying her. They were carrying between them a basket of clothes; she, being on the inside, was thus led to walk near to the line of houses, and when in front of defendant's premises she stepped into a hole in the pavement, or cellar window opening, and received thereby serious injury. The hole was an opening in the sidewalk at the cellar window of the house for the purpose of affording light and ventilation, and was also used for putting in coal. It extended fifteen inches out into the pavement, was three feet long, and five or six feet deep. The sidewalk was about ten feet in width. There was no guard above the openNegligence When a question for the Court-ing, but the street was lighted in the usual manHusband and wife - Practice-Suit by hus-ner, and there was on this occasion a light in the band and wife in right of the wife-What window immediately above the opening, which, not recoverable-Feme sole trader-What ne- however, plaintiff claimed only cast a shadow, cessary to entitle a wife to the immunities of the making the place more obscure. Act of 1855. WEEKLY NOTES OF CASES. VOL. VI.] THURSDAY, DEC. 12, 1878. Supreme Court. Oct. & Nov. '78, 79. Oct. 10, 1878. King v. Thompson and Wife. Plaintiffs' counsel offered to prove, by Mrs. to work, and the expense she was subject to, Thompson, the length of time she was unable owing to this injury; to be followed by evidence that for some time prior to the injury her husband had been in bad health, and she had been obliged to support herself and family. It was further proposed to prove the amount of the physician's bill, and that Mrs. Thompson had herself employed the physician, and was liable personally to pay the bill. Objected to as incompetent and irrelevant. Objection overruled. Exception. (First and second assignments of error.) Plaintiffs' counsel presented, inter alia, the following point: (5) "If the jury should be of opinion that plaintiffs are entitled to recover, they may allow the expenses of the cure, including medical attendance and nursing; compensation for the physical and mental suffering caused by the injury, for the loss of time, and for any permanent or continuing reduction of power to earn money." Answer. "Affirmed, if the jury find that prior to the accident Mrs. Thompson had been supporting herself by her own earnings, and that she contracted for her nursing and attendance of physicians; otherwise it is refused except as affirmed in the general charge.” (Fourth assignment.) Defendant's counsel presented, inter alia, the following point: (2) "If the jury find that the area in front of the cellar window was such as was usual and customary in the city of Allegheny for lighting and ventilating cellars, and reasonably necessary for those purposes, then the defendant is not guilty of negligence or nuisance in maintaining it." Refused. (Fifth assignment.) (4) "If the sidewalk was ten feet wide, and there was a paved space seven or eight feet wide between the curb and trees on one side, and the cellar opening or area on the other side, whereon. persons using the sidewalk could pass with ease and safety, and the way was lighted by a lamp in the window immediately at the opening, and by gas lamps in the street sufficient to enable the plaintiff to have avoided the accident of which she complains, then she was guilty of negligence, and cannot recover." Answer. The fourth point is refused, with the explanation that to entitle her to recover for loss of time, and nursing, and doctor's bill, the jury must be satisfied that the plaintiff, prior to the accident was supporting herself from her own wages, and that she is personally liable for the doctor's bill. (Sixth assignment.) Verdict for plaintiffs for $2319. The Court considered the verdict as excessive, but refused a motion made by defendant for a new trial, on condition that plaintiffs would accept a reduction of the verdict to $1200. This condition being agreed to, judgment for the plaintiffs was entered on the verdict as reduced. Defendant took this writ, assigning for error, inter alia, the admission of the evidence objected to, and the answers to points given above. A. M. Brown, for plaintiff in error. The evidence objected to was insufficient to suspend the marital rights of the husband, and remove from the wife her marital disabilities. Mrs. Thompson was here asserting her rights through a suit brought by her husband, without the shadow of a claim to the status of a feme sole. Shearman and Redfield on Negligence, 385. Oct. 21, 1878. THE COURT. This was an action on the case brought by the defendants in error, John Thompson and Elizabeth his wife, in right of said Elizabeth, to recover damages for alleged injuries to the wife caused by her falling into a cellar window opening of a building on Liberty Street, Allegheny City. The plaintiff in error, Robert H. King, was the owner of the premises where the accident occurred. There was an opening in the sidewalk at the cellar window of the house for the purpose of light and ventilation, and which was used for taking in coal. This opening was about fifteen inches in width, and less than three feet in length, thus projecting into the pavement from the front wall of the house fifteen or sixteen inches. The opening appeared to have been of the usual character for like buildings in the city. Upon the trial of the case in the Court below, the plaintiff (Mrs. Thompson) was permitted to testify, against the objection of the defendant, as to the length of time she was unable to work from the injury caused by the accident, and the expense to which she was subjected; also the In refusing defendant's fourth point the jury amount of the physician's bill for medical attendwere in effect instructed that, although the plain-ance; that she had employed the physician hertiff could have passed the alleged obstruction self; to be followed by evidence that her husband with ease and safety, and avoided the accident, had been in bad health, and that she had been it was no defence. This relieved the plaintiffs obliged to support herself and family. The adentirely of the burden of making out a prima mission of this evidence forms the subject of the facie case, and deprived the defendant of the first and second specifications of error. The defence that might have been fairly raised upon fourth, alleging error in the answer of the Court the ground of contributory negligence. to the plaintiffs' fifth point, raises the same question. These three specifications may be considered together. Waters v. Wing, 9 Sm. 211. Stewart v. Alcorn, 2 WEEKLY NOTES, 401. The fact that other persons in the city of Allegheny are guilty of maintaining a nuisance in front of their premises similar to the one complained of, cannot alter the case. City of Phila. Appeal, 28 Sm. 39. Black v. Tricker, 9 Sm. 13. The Court left it to the jury to decide under all the circumstances whether the hole causing the accident was lawful or a nuisance. Sidewalks are part of the public streets, and must be kept in a safe and convenient state of repair for public use throughout their whole width. No person, not even the adjoining owner, has the right to do any act which renders the use of the street hazardous or insecure. Geo. W. Guthrie, contra. The Act of May 4, 1855, sec. 2 (Purd. Dig. As this suit was brought for the use of the wife, 692, pl. 5), gives to a married woman all the privi- it is manifest no recovery can be had for any loss leges of a feme sole trader, whensoever her hus- the husband may have sustained, and for which band, from drunkenness, profligacy, or other he alone could bring suit. It is equally clear cause, shall neglect or refuse to provide for her, that the husband is entitled to the earnings of his and this Court has ruled that she is entitled to wife, and is liable for her support and mainteclaim the privileges of the Act without a decree.nance. If by reason of the accident the earning power of the wife was diminished, the loss in a legal sense is the loss of the husband. If physicians' bills, medicines, and expenses of nursing were incurred, the husband would be liable for their payment. This is the general rule. The exception is where the wife has been declared a feme sole trader under the Act of 22d of February, 1718 (1 Sm. L. 99; Purdon, 692, pl. 1), or the Act of 4th May, 1855 (P. L. 430; Purdon, 692, pl. 5), or is entitled to claim the immunities trees on one side, and the cellar window opening or area on the other side, whereon persons using the sidewalk could pass with ease and safety, and that the way was lighted by a lamp in the window immediately at the opening, and by gas lamps in the street sufficient to enable the plaintiff to have avoided the accident of which she complains, then she was guilty of negligence and cannot recover." The Court having refused to charge as thus requested we must assume the jury would have found the facts as stated in the point. It has been held in a number of cases, the most recent of which is Hoag v. The Lake Shore and Michigan Southern R. R. Company, not yet reported,* that where the facts are ascertained, the Court may pass upon the question of negligence as a matter of law. What are the facts here? A sidewalk ten feet wide; a paved space from seven to eight feet wide between the curb and trees on the one side and the opening at the cellar window on the other, the street lighted by a lamp in the window and gas lamps in the street of a feme sole trader under said acts by reason of the causes enumerated therein. There was nothing in the case to bring Mrs. Thompson within the protection of either Act of Assembly. We have nothing but the offer to show that for some time prior to the injury her husband had been in bad health, and that she had been obliged to support herself and family. The evidence in support of the offer was not printed in the paperbook. Assuming the offer to have been fully sustained, it does not come up to the requirements of the Act of 1855. Its language is: "Whensoever any husband, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader, under the Act of 22d of February, 1718, etc. It requires something more than mere temporary inability, by reason of sickness, of the husband to support his wife to bring the wife within the protection of this Act. There must be a desertion, or a neglect or refusal on the part of her husband-something that involves the wil-sufficient to have enabled the plaintiff to avoid ful non-performance of a duty on his part. the accident. It is really difficult to see how the plaintiff succeeded in getting into the hole. The testimony does not enlighten us. It must be borne in mind that the opening came out only about sixteen inches from the cellar wall. In order to fall in the plaintiff must have walked so close to the house as to touch it with her dress. She was also within the line of the door-steps, which usually project twice the distance into the sidewalk that the opening did. No prudent person walks within sixteen inches of the houses when passing over the sidewalks of a city. It cannot be done without peril. Even where a street is dimly lighted the line of houses is always visible. It is proper enough to hold owners of property to a reasonable care over it; yet at the same time persons using public streets ought also to exercise some little caution. Without it there is hardly a street in Allegheny or Pittsburgh where, by reason of some slight inequality in the pavement, a trifling hole or a loose stone, the passer-by may not fall and sustain injury. The defendant's fourth point ought to have been affirmed without qualification. The fifth specification alleges that the Court erred in not instructing the jury as requested in the defendant's second point, which was as follows: "If the jury find that the area in front of the cellar window was such as was usual and customary in the city of Allegheny for lighting and ventilating cellars, and reasonably necessary for those purposes, then the defendant is not guilty of negligence or nuisance in maintaining it." This point ought to have been affirmed. If the opening was merely the usual and customary opening of cellar windows in Allegheny, and was reasonably necessary for the purposes of light and ventilation, it certainly could not be held to be a nuisance. Nor could it fairly be said that the owner was guilty of negligence in maintaining it. We must take a reasonable view of this question. If it has been customary time out of mind, for property-holders in Allegheny to have such openings, it involves a tacit assent on the part of the municipal authorities, as well as a general acquiescence on the part of the public. More than this, if such openings exist at nearly every house, such fact must have been known to this plaintiff as well as others. And if reasonably necessary for de novo awarded. light and ventilation, the property owner is hardly Opinion by PAXSON, J. GORDON and TRUNchargeable with negligence for placing and keep-KEY, JJ., believing the fourth point was well ing it there. The jury might have found against refused, dissent from so much of the opinion as the custom, and that the opening was not neces-reverses the Court below on that point. The judgment is reversed, and a venire facias sary for the purposes indicated. But the question should have been submitted to them, and it was error not to affirm the point. * Reported 4 WEEKLY NOTES, 561. The defendant's fourth point called upon the Court to instruct the jury that "If the sidewalk was ten feet wide, and there was a paved space seven or eight feet wide, between the curb and Oct. & Nov. '78, 36. and that the tenant has but a lease of it. Ordinarily such property would have been subject to a distress for rent while in possession of the lessee. Hence the passage of the Act of May 13, 1876, to protect the rights of a particular class. The object of the Act being to protect against a claim for rent, it is only when a party having a lease of property protected by the Act falls in arrear with his rent, and the protected property on the leased premises is levied upon to satisfy the claim of the landlord, that it becomes necessary for the owner or lessor of the exempted property to give notice to the landlord of his claim of property; and if such notice be given without unnecessary delay, after a knowledge of the fact of a levy has been received and before a sale, it would be sufficient. "" The jury rendered a special verdict, subject to the opinion of the Court, whether the notice given was sufficient under the above Act. They found the facts, inter alia, that on August 23, 1876, when the levy was made, Mrs. Thompson, the tenant and lessee of the organ in dispute, gave notice to the bailiff that it was leased from the plaintiffs; and that the plaintiffs, five days after the levy and nine days before the sale, served a like notice in writing, accompanied by a printed copy of the Act of May 13, 1876 (supra), upon the landlord personally. Subsequently the Court in banc entered judgment for the plaintiffs on the special verdict, FETTERMAN, J., in an opinion filed, saying, inter alia:-"We think the notice given in this case, as found by the jury, was sufficient, and in time to save the rights of the owners of the instrument in controversy. We do not think it necessary nor does the Act require the owner of the instrument to be constantly on the alert to notify the landlord of such persons as may con The defendant took this writ, assigning for error the entry of judgment for the plaintiffs on the special verdict. S. C. Schoyer (M. H. McGeary with him), for the plaintiff in error. The Act of May 13, 1876 (supra), being in derogation of the common law and for the benefit of a particular class, should be strictly construed. "Be it enacted, &c., that hereafter all pianos, melodeons, and organs, leased or hired by any person or persons residing in this Commonwealth, shall be exempt from levy and sale on execution or distress for rent due by such person or persons so leasing or hiring any such piano or pianos, melodeon or melodeons, organ or organs, in addi The landlord looks upon the goods on the demised premises as a pledge, and determines the amount of credit to be given to the tenant according to their value. The legislature in fram tion to any articles or money now exempt by law; Pro-ing the Act had this fact in view, and, in requirvided, That the owner or owners of any such piano, melo-ing notice to be given, intended to prevent the deon, or organ, or his or their agent, or the person or per- landlord's being misled by appearances. This sons so leasing or hiring the same, shall give notice to the can only be done by notice to him at the time landlord or his agent, that the instrument is leased or the leased instrument is put upon the premises, or, at latest, before any credit (in the shape of rent in arrear) has been given on account of it. hired." Moreover, the words of the Act are "shall be exempt from levy and sale," showing that notice was intended to be given before levy made. We contend, therefore, that the notice in this case was too late. The Court below said: "We do not think it necessary, nor does the Act require the owner of the instrument to be constantly on the alert to notify the landlord . . . Notice at some time must be given and constant vigilance is his only safeguard, unless he give it when the instrument is put upon the premises. J. W. Kirker, contra. The Act of 1876, being in pari materia with and in fact, if not in terms, a supplement to the Exemption Act of 1849 must be construed with reference thereto. Neff's Appeal, 9 H. 243, 247. Under the Act of 1849, the claim for exemption may be made by parol and need not be in the precise lan guage of the Act. Bowman v. Smiley, 7 Casey, 225. Diehl v. Holben, 3 Wr. 213. |
