law upon the assured for damages on account of bodily injuries accidentally suffered by any person by the maintenance and use of certain automobiles specified in the policy. The policy provided:

interfere in any negotiations for settlement, or in any legal proceeding against it. The insurer was under no obligation to pay in advance of trial, and the decision whether to settle or to try was committed to it. The plain words of the policy have no other meaning.

The judgment in favor of the defendant on the demurrer was properly entered, and it is affirmed.

(244 Pa. 307)

"F. The assured, upon the occurrence of an accident, shall give immediate written notice thereof to the company, or to its duly authorized agent, with the fullest information obtainable. He shall give like notice, with full particulars, of any claim made on account of such accident. The assured shall not voluntarily assume any liability or settle any claim, except at his own cost, nor incur any expense, nor interfere in any negotiation for settlement or legal proceeding, without 1. RAILROADS (§ 278*)-NEGLIGENCE-LIA BILthe consent of the company previously given in writing.

COCHRAN v. PENNSYLVANIA R. Co. (Supreme Court of Pennsylvania. Feb. 23, 1914.)

ITY.

Where a milk shipper placed his cans in the building at a railroad station, and the door was fastened according to the custom of such shippers so that, on his return to the station upon arrival of the train, he was obliged to step on a narrow ledge and around the corner of the building, and in so doing fell and was injured by the train, the railroad company was not liable for his injuries.

"G. If thereafter any suit, even if groundless, is brought against the assured to recov. er damages on account of such injuries as are covered by this policy, the assured shall immediately forward to the company every summons or other process served upon him, [Ed. Note. For other cases, see Railroads, whereupon the company will, at its own cost. Cent. Dig. §§ 891-900; Dec. Dig. § 278.*] defend against such suit in the name and on 2. RAILROADS (§ 278*)-NEGLIGENCE-DUTIES. behalf of the assured. The company shall A railroad company is under no duty to not be liable hereunder on account of one take precaution against an unusual and negliperson or one accident in excess of the lim-gent use of proper appliances by shippers. its of liability applicable thereto as expressed in said declarations, except for the expense incurred by the company in defending suits brought against the assured."

Cent. Dig. 88 891-900; Dec. Dig. § 278.*]
[Ed. Note. For other cases, see Railroads,

Appeal from Court of Common Pleas,
Chester County.

Trespass by Henry L. Cochran against the Pennsylvania Railroad Company for personal injuries. From judgment refusing to take off nonsuit, plaintiff appeals. Affirmed.

While the policy was in force an action was brought against the brewing company to recover for an injury caused by one of its automobiles, and a judgment obtained against it for $9,200. The present action was based on the allegations that, before the trial of the action against the brewing company, a settlement could have been effected for $6,000, and that the officers of the brewing company requested the insurance company to make a settlement for that amount, and offered to contribute $1.000 for the purpose, which, with $5,000 to be paid by the insurance company, would have made up the sum demanded; that the insurance company refused to make the settlement and went on to trial, which resulted in a judgment in a larger amount against the brewing company, which it has paid; and that the refusal of the insurance company to settle caused a loss to the brewing company of the difference between the judgment if paid and the insurance money it received, less $1,000, The court directed that a nonsuit be enwhich it was willing and offered to contrib-tered, and dismissed the rule to show cause ute to the settlement proposed. why the judgment of nonsuit should not be

On the trial it appeared that the building in which the shippers of milk put their cans had three doors, a wide door on the south side, at which the cans were received from the wagons, a similar door on the north side, from which they were loaded onto the trains, and a small door on the west side, which the shippers used as a means of access to the building. The only steps to the building, the floor of which was about 3% feet above the ground, were those leading to the west side, and when that door was closed it was necessary, in order to enter the building, to use those steps, and then walk along a narrow ledge some 6 or 8 inches wide and about 3 feet in length to either the north or south platform. Other facts appear by the opinion of the Supreme Court.

Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCH ZISKER, JJ.

The rights of the parties are to be deter-stricken off. mined by the agreement into which they entered. By the provisions of the policy the insurance company was obliged to defend at its own cost any action against the insured. Granville L. Rettew, of West Chester, and and the entire management of the defense J. Barton Rettew, of Philadelphia, for apwas expressly intrusted to it, and the insur-pellant. A. M. Holding, of West Chester, for ed was forbidden to settle any claim, or to appellee.

earlier will.

Dig. § 515; Dec. Dig. § 207.*1
[Ed. Note. For other cases, see Wills, Cent.

Appeal from Orphans' Court, Philadelphia County.

In the matter of the estate of Emily L. Baker, deceased. From a decree of the orphans' court dismissing a decree of the register of wills, admitting to probate a paper alleged to be a codicil to the will of Emily L. Baker, deceased, John E. Baker and another appeal. Reversed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

PER CURIAM. [1] At the flag station thereof, in absence of evidence that testator inwhere the plaintiff was injured there was a tended such codicil to be associated with the frame building 7 feet wide and 13 feet long, into which shippers of milk placed their cans, and from which they removed them to a platform on the north side and to the door of the car in which they were to be carried. There was a similar platform on the south side, where milk cans were unloaded from wagons and carried through a wide doorway into the building. Access to the building was by a door at the west end, which was reached by three or four steps leading from the ground. When the weather was cold or stormy, the shippers of milk were accustomed to close this door and fasten it by a wooden button on the inside, or by stacking their cans against it, to prevent their milk from freezing and the tags from being blown off the cans. An agent was not kept at the station, and delivery of milk to the car door at the edge of the north platform was in the entire charge of the shippers. On the morning of the accident the plaintiff placed his cans in the building, and went elsewhere while awaiting the arrival of the train. He knew that the door was fastened from the inside, and that when he returned he would not be able to enter the building through it. When he heard the train coming he went up the steps, and from

the top of them attempted to reach the north platform by stepping on a narrow ledge and around the corner of the building. In so doing he fell and was injured by the train.

The building provided by the defendant was safe when used in the way it was intended to be used. There was no fault in construction or maintenance. The only dan ger was that caused by the plaintiff and other shippers in shutting off their means of access by the door.

[2] A defendant is under no duty to take precaution against an unusual and negligent use of proper appliances by others. Graeff v. Railroad, 161 Pa. 230, 28 Atl. 1107, 23 L. R. A. 606, 41 Am. St. Rep. 885.

The nonsuit was properly entered, and the judgment is affirmed.

(244 Pa. 350)

In re BAKER'S ESTATE. (Supreme Court of Pennsylvania. March 9, 1914.) 1. WILLS (§ 423*) — PROBATE - CONCLUSIVE

NESS.

Where a decree of the register of wills probating a will remains unappealed from for more than three years, such will cannot be superseded by the subsequent production of a will later in date.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 911-913; Dec. Dig. § 423.*] 2. WILLS ($207*)-CONSTRUCTION CODICIL. A codicil, shown to have been made to a will not produced or accounted for and the contents of which are unknown, cannot be ingrafted on an earlier will and probated as part

Joseph W. Kenworthy, Joseph B. Thomas, and Thomas J. Norris, all of Philadelphia, for appellants. Byron Hancock and Joseph P. Bartilucci, both of Philadelphia, for appellee.

STEWART, J. The appeal is from a decree of the orphans' court of Philadelphia county dismissing an appeal from the decision of the register of wills admitting to probate a certain paper as a codicil to the last will and testament of Emily J. Baker, deceased. Emily J. Baker died 10th June, 1910. There

was produced before the register what purported to be a last will of the testatrix, executed 13th December, 1892, which was duly probated; at the same time another separate instrument, duly executed by this testatrix, be a codicil to testatrix's last will and tesbearing date 18th March, 1910, purporting to and codicil were probated. From the adjutament, was offered for probate. Both will dication with respect to the will of 13th December, 1892, no appeal has been taken. The the contention of the appellants being that controversy relates exclusively to the codicil; this instrument was not established as a codicil to the will which had been propounded and probated. With a view to expediting the sion admitting the codicil to probate as part trial of the appeal from the register's deciof the will of 1892. it was agreed in writing by all the parties in interest that the following should be taken as established facts in the case: "That the said testatrix made, published, and declared a certain writing as and for her last will and testament on the 13th day of December 1892, a true copy of which appears in the proceedings in this case. That the said paper writing was found, after the death of the testatrix, in a certain deposit box rented by the said testatrix in the vaults of the West Jersey Trust Company of Camden, N. J. That the said testatrix, subsequent to December 13, 1892, and prior to the 18th day of March, 1910, made, published, and declared a certain writing as and for her last will and testament. but which writing has not been produced,

|

nor found although diligent search has been | pealed from for more than three years, and made therefor, and was not among any of the end of the controversy as to it has been the papers of the said testatrix. That on reached. It could not be superseded by the or about the 18th day of March, 1910, the last will if recovered. Cochran v. Young, 104 said testatrix executed a certain paper writ- Pa. 333. For like reason it is unimportant ing as and for a codicil to that certain will to inquire whether from the facts connected named in paragraph 4 of this agreement, a with the disappearance of the later will the true copy of which paper writing appears in presumption arises that it was destroyed by the proceedings in this case." testatrix animo revocandi.

[2] That will is wholly out of the case as an operative instrument, and, this being so. we have to deal with the single proposition that a codicil, shown to have been made to a later will, whose contents are unknown and which is neither produced nor accounted for, may be ingrafted on an earlier will and probated as part thereof; and this in entire absence of any evidence whatever from which an inference can possibly be drawn that testatrix intended any such thing. No argument is advanced in support of the proposition as we have stated it. Nevertheless, we have stated it correctly. The codicil was propounded in connection with the will of 1892 as a codicil thereto, and was so admitted to probate. Now this instrument is either a codicil to that will, or it was an independent testamentary act, one or the other;

We have then the fact of a will executed 13th December, 1892, which has been duly probated; the further fact that subsequent to the execution of this will, and prior to 18th March, 1910, testatrix executed another will which has been either lost or destroyed; and the additional fact that on 18th March, 1910, testatrix executed the codicil in controversy. Confining our attention to what appears within the four corners of the codicil as written, it is quite evident that when originally executed this paper was intended, not as a codicil to the will of 1892, but to a will subsequently written and not now produced. The reference in the codicil shows this unmistakably; for instance-in the will of 1892, now probated, testatrix's son, John E. Baker, is appointed sole executor; in the codicil this appears: "I nominate and appoint respectively as my executrix and ex-it could not be both. It might have been conecutor of my will, Emily Tole and Squire Schmidt mentioned as my executor in the will to which this is a codicil." This reference necessarily associates the codicil with some will other than that of 1892. That there was another and later will than this latter is beyond question. It is a fact agreed | probated. If it was a last will, self-sustainto by all the parties in interest; and aside from this, it is made clear beyond all dispute by the testimony of the scrivener who pre-admitted to probate; but it has been probatpared the codicil. This witness testifies that the testatrix told him, when directing him as to the changes she proposed making by the codicil she wished him to prepare, that she had two wills, and that she wanted to change the last one, the one that was in the possession of Squire Schmidt and which appointed Squire Schmidt executor, and that among other changes she wanted to insert with Squire Schmidt as executor her daughter as executrix. The later of the two wills, the one not produced, was then the will which testatrix intended to supplement by the codicil.

tended with much force that it was the latter, and was entitled to probate as a last will, on the ground that it makes a disposition of the testatrix's entire estate, and therefore capable of subsisting independently of the last will; but it was not so propounded or

ing, then the will of 13th December, 1892, was not a last will and should not have been

ed, an adjudication unappealed from. In support of the decree it is urged that the codicil does not fall because presumably the testatrix destroyed the will to which it was a codicil animo revocandi, and presumably by retaining the codicil she intended that it should become operative. The one sufficient answer is that this may all be so, and, admitting it to be true, it does not establish a right to ingraft this codicil upon any other will than that which was in the mind of the testatrix when she made it, however clearly it might support the right to have it probated as a last will, depending on its independ[1] It does not concern us to inquire with ent sufficiency. With this latter we have, regard to the disappearance of this will, however, no concern, since the appeal is simwhether it was lost or whether it was de- ply from a decree probating the instrument stroyed by the testatrix animo revocandi. as a codicil to the will of 1892. We are of The will of 13th December, 1892, has been opinion that error was committed in so proprobated as testatrix's last will and testa-bating it; and the decree affirming the proment, that adjudication has remained unap- bate is now reversed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

4 WEAPONS (§ 18*)—INJURY FROM UNLAWFUL | Stokes, who was in the employ of the deSALE-DEFENSES-NEGLIGENCE OF BUYER. fendant and in charge of the store at the In an action for the negligent sale of firearms to a minor, the question of the care or time of the sale. The defendant was not pernegligence of the minor in the use of the fire-sonally present when the sale was made, and arm is immaterial; the only issues being wheth- did not know of it until a later period. The er defendant was negligent, and the injury was purchase of the rifle and cartridges was withthe natural consequence of that negligence. [Ed. Note.-For other cases, see Weapons, out the consent or the knowledge of the boy's Cent. Dig. §§ 34, 35; Dec. Dig. § 18.*] parents. The boy was entirely unacquainted 5. TRIAL (§ 351*) PERTINENT INTERROGA- with and inexperienced in the use of fireTORIES QUESTIONS ALREADY SUBMITTED. arms. It was only after some experimenting, The trial court need not submit to the jury in which he was assisted by his companions, a special question propounded by the defendant which is substantially the same as another one that he was able to load and discharge the which was answered by the jury. rifle. After several shots had been fired, the Boucher boy, with his companions, proceeded to Centennial street, where they set up, in the traveled way, a target. This target consisted of a “spider" or frying pan, with the handle stuck in the ground. After one or two harmless attempts to hit this target, the rifle was again discharged by the Boucher boy; the bullet striking Mrs. Bernard, who was approaching along the highway in plain sight, and distant about 250 feet.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. § 351.*]

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Separate actions by Catherine Bernard and Henry L. Bernard against James H. Smith. Verdict in each case for the plaintiffs, and the defendant excepts. Exceptions overruled. George W. Greene and P. Francis Cassidy,

both of Woonsocket, for plaintiffs. Crane, Munro & Barry, of Providence, for defend

ant.

[1] The declaration in each case is in two counts. The negligence charged in the first count is the violation of the statutory duty imposed by section 7, c. 134, Gen. Laws of

VINCENT, J. The plaintiff Catherine Ber-1909, which prohibits the sale of firearms to nard brings her suit to recover damages for minors under the age of 15 years, without personal injuries alleged to have been suffer- the written consent of the parent or guarded by her through the negligence of the defendant, and the plaintiff Henry L. Bernard, the husband of Catherine Bernard, brings his suit to recover for loss of services and expenses due to the same injuries.

ian. The second count sets up the sale and delivery of the rifle to Armand Boucher in violation of the common-law duty; the said Boucher being under the age of 21 years, to wit, of the age of 11 years, and unused to and inexperienced in the use of firearms, all of which the defendant knew or should have known.

The defendant demurred in each case to each of said counts on the ground that no

These cases were first tried in the superior court on the defendant's demurrers to the declarations. The demurrers were overruled. Later the cases were tried together to a jury in the superior court, and the plaintiffs, Catherine Bernard and Henry L. Bernard, recov-cause of action was stated. The demurrers, ered verdicts of $500 and $135, respectively. The cases are now before this court upon the defendant's exceptions to the decision of the superior court overruling the demurrers to the declarations; to the rulings of the court during the trial admitting and excluding testimony; to the refusal to permit the defendant to have the jury find specially upon certain questions; to the refusal of the court to charge as requested by the defendant; to the refusal of the court to direct a verdict; and to the decision of the court in denying the defendant's motion for a new trial.

however, do not point out or suggest in what respect the plaintiffs' declarations fail to state a cause of action; but we conclude from the rescript of the superior court that the grounds of demurrer were more particularly set forth in the argument of defendant's counsel, who claimed that the declarations were defective in failing to allege that the child who discharged the rifle did so in ignorance of the danger, and while he was in the exercise of that degree of care of which he was capable. As the superior court said, in overruling the demurrers, if the injury alIt appears from the evidence that the plain- leged had been to the child to whom the dantiff Catherine Bernard, at about 5 o'clock in gerous article was intrusted, there might the afternoon of December 11, 1911, while have been some force in this argument: some walking along Centennial street in the village allegations might have been necessary to of Pascoag, was hit in the arm by a bullet shot show that he was not guilty of contributory from a rifle in the hands of a boy named Ar- negligence. But here, where the injury was mand Boucher; the distance between Boucher to a third person, it is not necessary to negaand the plaintiff at the time of the shooting tive due care or even the willful action of heing about 250 feet. The boy Boucher was the child. The negligence of the child in 11 years of age. He had purchased the rifle, handling the dangerous weapon or even his said to be a 22-caliber, and two boxes of cart-willful use of it was one of the natural conridges at the defendant's store from a Mr. sequences of intrusting him with it. We