York Legal Record. Vol XVIII. THURSDAY, SEPT. 15, 1904. creased insurance was effected in the other company. No notice was afterwards given to the company or its secretary of the fact of such No. 16. additional insurance having been effected, nor of the amount of it, nor in what company, until turned to company for indorsement of "addithere was loss by fire; policy had not been retional insurance;" neither had the company received any premiums or assessments after notice that the additional insurance had been placed. HELD, that the policy could not be enforced. forth, and believing that the said alleged negligent death took place within one year prior to the commencement of said suit, proposed to plaintiff's attorneys to compromise said suit by the payment of one thousand dollars. Plaintiff's attorneys accepted this proposition." The statement of the secretary, "that the company would allow additional insurance," was merely an expression of opinion, and must Within two or three days thereafter be held to mean that such consent would be althe deponent discovered the alleged de-lowed if notice were given and the amount was ception, immediately notified the plaintiff's attorneys of his discovery, and subsequently notified his clients, who at once repudiated the proposed settlement. The sum and substance of this defense is, that defendant was induced to enter into the agreement of compromise by reason of the fraudulent representation. purposely made, of a material fact, viz: the date of the death of the plaintiff's minor son. This presents a good prima facie defence, which, if established upon the trial, would prevent recovery. "It is always competent,' says Mr. Justice Fell, in Atherholt v Hughes, 208 Pa. 226, "for the defendant to prove that he was induced to enter into a written agreement by reason of fraudulent representations by the plaintiff of material facts going to the consideration on the faith of which he acted." To cite further authorities upon so well settled a principle of law would be a waste of time. The rule must be discharged. C. P. of reasonable. Cases which hold insurance companies liable surance is not endorsed on the policy are based although the consent to take out additional inupon some act of the company which operates as an estoppel. Rule to strike off non-suit overruled. W. LaMonte Gillette, Freyman and Nothstein for plaintiff. Craig & Loose and John Rupp for defendant. June 16. 1893. TREXLER. P. J., 31st. Judicial District, specially presiding.Plaintiff was insured in the defendant company by policy dated the 9th day of April, 1895. The policy contained the usual clause found in what are known as standard policies, namely: "This entire policy unless otherwise provided by agreement endorsed hereon or hereto shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or part by this policy." During the continuance of the policy Carbon Co. the insured procured additional insurance in another company. Christman v. Fire Insurance Co. A policy provided: "This entire policy, unless otherwise provided by agreement endorsed hereon or hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether void or not, on property covered in whole or part by this policy." J. H. Rothermel testified: That he had received notice from the company that the policy of insurance, of which the one in question is a renewal, was about expiring; that he was to see Christman, the plaintiff, to get him to renew the policy, and that he went to see Christman and asked him whether he would not like additional insurance; that he was not Insured did procure additional insurance, in authorized to give him such insurance another company, upon the representation of the agent (who represented both companies,) that unless a permit from the company was he had seen the secretary of the first company, bad. That he saw the secretary, "who "Who gave me permission, saying that I could gave me permission, saying that I could give him additional insurance, but not in this give him additional insurance, but not in company." Said conversation with the secre tary was had some time before the application this company;" that he should renew for renewal of the old policy, and before in- the policy, and that he, the secretary, lish the waiver of the condition; Sitler v. It is the duty of the plaintiff to estabFire Ins. Co., 18 Sup. Ct. 152. The state of facts presented by the plaintiff afforded the company no option as to considering whether the amount of the additional insurance was too large or as to the reliability of the company issuing it. would mention it so when he wrote the ditional insurance at the time it was acpolicy; that he then went to the plaintiff tually taken out. and told him that he had obtained permission. He never communicated to th: secretary the amount of the additional insurance, nor that he had effected such insurance. This conversation with Keiter, the secretary of the defendant comp any, appears to have been held before the application was handed in, although the testimony of the agent is very indefinite The policy in the other company was is sued August 1. 1899. No notice was given of such additional insurance, and the policy was not returned to the secretary for the purpose of endorsing "addi tional insurance," and the agent in a letter after the fire had occurred states that he must have forgotten it. It will be observed that the grounds laid by the plaintiff are that the secretary of the defendant company assented to the taking out the additional insurance, this assent being given prior to the issuing of the policy and four months prior to the taking out of such additional insurance. It must be remembered that the policy is the written contract between the parties and that the long line of cases which hold insurance companies liable even when the consent to taking out add tional insurance is not endorsed. is based upon some act of the company which operates as an estoppel. There are no facts in this case that would show that the company after notice of the additional insurance had received any premiums or assessment from the insured. The alleged consent of the secretary to an allowance of additional insurance was given prior to the issuing of the policy, and was without definiteness as to the amount of such additional insurance, or as to the name of the company writing the same. There was no proof that the secretary of the defendant company had any authority, and even if he had authority to consent to additional in surance it would not be such a notice as is required by the provisions of the policy. The plaintiff did not act upon the information he claims to have received until August of 1899, four months after the policy was issued. The statement of the secretary that the company would allow additional insurance was merely an expression of opin ion, and he must be held to mean that such consent would be allowed if notice were given and the amount was reason able The additional insurance could not be endorsed at the time the alleged consent was given to the secretary. There was no additional insurance The secretary is alleged to have waived a condition which he was not capable of performing. As stated before there was no definite notice of any additional insurance being effected, and no acts on the part of the defendant company working an estoppel. Under all the evidence produced by the plaintiff I do not think the jury could find a verdict for the plaintiff and therefore the non suit was entered. The motion to take off the non-suit is overruled. Lindsay v. Keystone State Telephone and Telegraph Company. Telephone Companies-Right to plant poles in highways-Foreign Corporations. A telephone company has no authority to so construct lines that the wires, guy wires, or poles shall extend over or upon land outside of the highway. A foreign corporation incorporated to construct and operate a telephone system, registerhas the right to erect its poles and string its ed under the Act of 22 April, 1874, P. L 108, wires upon the highways of this State notwithstanding Sec. 5, Act of 26 April, 1855, P. L. 328, prohibiting any foreign corporation from acquiring or holding any real estate within this Commonwealth. In my opinion it was not any such Hearing on bill and answer in a suit in consent as would release the insured from equity to restrain defendant from congiving notice to the company of the ad-structing its telephone line. The essential facts are stated in the pecially authorized to hold such property opinion of the Court. by the laws of this Commonwealth. Lindsay & Harvey for plaintiff. Frank R. Shattuck for defendant. Foreign corporations may do business in this State upon complying with the provisions of the Act of April 22nd, 1874, September 3, 1904. JOHNSON, P. J.-P. L. 108. The plaintiff is the owner of lands in the This defendant was incorporated for Township of Nether Providence, in this the purpose of constructing telephone county. The defendant was incorporated lines throughout the United States. The under the laws of the State of New Jersey for the purpose of constructing and maintaining lines of telephone throughout the United States, and was duly registered in the office of the Secretary of the Com monwealth of Pennsylvania under the Act of Assembly of April 22d, 1874, and its supplements. registration in the office of the Secretary of the Commonwealth gave it authority to transact its business in this State. To transact its business it is necessary to plant poles and string wires. Section 33 of the Act of Assembly of 1874 gives telegraph companies (held to include telephone companies) the right to construct its lines along and upon the public highways. Two public roads run through the plaintiff's lands. On one of them his lands run to the middle of the road, on the other I do not think that the prohibition to he owns the entire roadway. Along over hold real estate under the Act of 1855 is these roads on the lands of the plaintiff, such as to deprive the defendant of the the defendant was about to erect poles right to construct and maintain its line and string wires. This bill was then in the public highway, upon its giving filed a preliminary injunction was granted, which was dissolved upon defendant filing a bond approved by the court to secure the plaintiff from any damages suffered. The defendant then constructed its line by planting poles in the highway, some of the wires extending over the plaintiff's lands outside of the roadway, and guy wires and poles to sustain the line are in a number of places on the plaintiff's lands outside the roadway. The bill must be sustained as to the wires or poles outside of the line of the roadway. The plaintiff, however, contends that a New Jersey corporation created to construct telephone lines throughout the United States though registered in Pennsylvania has no right to construct its lines even on the highway of Pennsylvania, because of the provisions of the Act. of Assembly of Pennsylvania of April 26th, 1855, P. L. 328, Sec. 5 of which is as follows: bond duly approved in a sufficient sum to make good to the land owner all damages he may suffer. I am therefore of the opinion that the defendant is entitled to construct and maintain its line on the public road. Gray v. Braden. Although the deposition of a non-resident party, to be read in his own behalf, may be taken on a rule under the 8th section of the Act of May 23, 1887, P. L. 158, such an application is not to be granted as a matter of course where the adverse party objects; and if the deposition be taken, it cannot be read in evidence, if the adverse party has given notice that he desires the presence of such party at the trial, that he may be cross-examined in the presence of the jury. Rule to take the deposition of the plaintiff and motion to quash same. Boyd E. Warne and Albert B. Smith for plaintiff. "That no corporation other than such J. F. McFarland for defendant. as have been incorporated under the laws of this State, nor shall any foreign gov- October 13, 1903. McILVAINE, P. J. ernment, potentate or power, hereafter -The rule to take depositions on behalf acquire and hold any real estate within of the plaintiff was issued upon the prothis Commonwealth, directly in the cor- cipe of the plaintiff's counsel, and is not porate name, or by or through any trus- supported by any affidavit wherein reastee or other device whatsoever, unless es-ons are assigned why said depositions should be taken, and the interrogatories nation, and we take it that the meaning filed show, first, that the only witness to of the language of the Act is at the trial be examined is a resident of the State of If the plaintiff's deposition is taken on Missouri; second, that he is the plain- this rule, it is true the defendant can tiff in this case. Should the rule be file the cross interrogatories. But, in quashed? our opinion, that would not be giving to the defendant all that is given by the 7th section of the Act of 1887 The manner The Act of May 23, 1887, P. L. 158, which makes parties competent witnesses in their own behalf and subject to cross-in which the adverse party sustains himexamination by the adverse party, pro- self under this cross-examination before vides that "the testimony of an compe- the jury is an important matter. Again, tent witness may be taken by commission the developments at the trial often sugor deposition, according to the law of gest the course that this cross-examinathis Commonwealth and the rules of the ion should take. proper court." In this court we have no We are therefore, of the opinion that, standing rule relative to the taking of although the deposition of a non-residepositions of parties, our book of court dent party to be read in his own behalf rules having been adopted long before may be taken on a rule under the prothe passage of the Act of 1887 We visions of the Act of 1887, still it canmust, therefore, consider the question not be taken as a matter of course where before us as though it were an applica the adverse party objects, and if taken, tion to a chancellor for an order to take could be read in evidence if the adverse the deposition of the plaintiff to be read party had given notice that he desired. at the trial of the case, and to relieve the presence of the party at the trial that him from attendance and examination be- he might cross examine him in the presfore the jury will try his case. ence of the jury. This ruling of the court, of course, would not prevent any party from obtaining a rule to take the testimony of a party to be used in case of his death before the trial, or for any other cause shown to the court by peti ion, duly verified, that would move a chancellor to grant such a rule. Rule quashed. Abstracts of Recent Decisions. (Cases not otherwise designatea are Supreme Court cases.) In case of the ordinary witness who resides outside the limits of our State, a rule to take his deposition and relieve him from attendance upon the trial would issue under our rules as a matter of course; and for two reasons: First, to relieve him from the expense and loss of time in making a long journey to reach the place of trial. He is not pe cuniarily interested in the result of the suit to be tried, and in consideration of his telling what he knows in the interest of the administration of justice, he is in equity and good conscience entitled to be relieved from the burden that the attendance at court would be to him. Second, the process of this court Contagious diseases—Quarantine.—A, would not be effective in compelling his having no legal settlement in Pennsylvaattendance if he refused to attend after nia, being temporarily in this State, was being subpoenaed to do so. These reas- attacked by smallpox, and thereby beons do not apply to a non-resident plain- came in need of aid as an indigent person. tiff who desires to testify in his own be- The borough in which he thus became a half. He is pecuniarily interested in charge had no pest-house for quarantine, the result of the suit. He has volun- and he was removed to the county almstarily come into our jurisdiction, and house at the instance of the physician for this court has allowed him to avail him the indigent poor in that district. The self of its process to collect a debt which directors of the poor demanded repayhe claims a resident within this juris ment of expenses incurred from the bordiction owes him. The Act of 1887 ough. HELD. the plaintiff was entitled that makes the plaintiff a competent wit- to recover. -Poor Directors v South Bethness in his own behalf also allows the lehem Borough, (C. P. of Northampton defendant to call him for cross-exami- Co.,) 51 Legal Intelligencer 320. York Legal Record. Vol. XVIII. THURSDAY, SEPT. 22, 1904. C. P. of No. 17. Delaware Co. provisions of the law relative to mechanics' liens; and the particulars of such labor and materials, the name or names of the actual or reputed owner or owners, as also the occupier or occupiers of the premises for the time being shall be set forth in a statement to be filed within Boroughs-Sidewalks-Paving-Munici- thirty days after such expense shall have pal Lien-Liability of lot not in Bor- been incurred." ough, for paving-Act of 2 May, 1883, P. L 320, construed. Borough of Colwyn v. Smith. A borough may not exercise its municipal authority outside the borough limits A lot of land located in one borough fronting without legislative authority. The legisupon a street all of which, including the side- lature may so authorize it; Pittsburg v. walk, is in another borough, is subject to a lien Brace Bros., 158 Pa. 174. Has it done it? filed by the latter borough for paving the sidewalk under the Act of 2 May, 1883, P. L. 320. The language of the Act is "to reWhere upon the trial of a scire facias under a quire the grading, curbing, and guttermunicipal lien filed for paving a sidewalk it ap-ing thereof (the sidewalk) by the owner pears that a cinder walk existed at the front or owners of land respectively fronting where the paving was done, but there is no thereon." evidence that the cinder walk was laid by municipal authority, the plaintiff is entitled to recover without any evidence that the cinder walk was out of repair. A borough having authorized the laying of a sidewalk cannot, if the sidewalk is in good repair, require the owner of a lot fronting thereon to lay another. Motion by defendant for a new trial and for judgment on a point of law reserved non obstante veredicto. The essential facts are stated in the opinion of the Court. E. P. Bliss for motion. V. G. Robinson, contra. September 2, 1904. JOHNSON, P. J.This is a suit on a municipal lien for paving a sidewalk in front of defendant's property. The sidewalk and street are in the Borough of Colwyn. The premises described in the lien are in the Borough of Darby, the line dividing the two boroughs at the place is the building line, and fronts on the sidewalk paved. The Act of Assembly of May 2, 1883, P. L. 320 gives the corporate officers power to require the grading, curbing, and guttering thereof (the sidewalks) by the owner or owners of land respectively fronting thereon, in accordance with the general regulations prescribed. Section 2: "The corporate officers shall have power to cause the same to be done on failure of the owners thereof, within the time prescribed by the general regula tions, and to collect the cost of the work and materials with twenty per centum advance thereon from said owners, as claims are by law recoverable under the There is nothing in the Act which limits the borough to the right to file liens against lands situate only in the borough. The pavement being in the borough, and the premises fronting thereon, I am of opinion that so far as this question is concerned the lien is good. Another question raised at the time, and decided against the defendant, was the right of the borough, under the facts of the case, to lay this pavement and charge the defendant with the cost of it. In front of the premises where this pavement was laid was a cinder walk. There was no evidence that this walk had ever been authorized by any municipal authority, nor as to who laid it, nor was there any evidence that it was out of repair. It was conceded in the argument, however, that the old walk was not laid by virtue of any municipal authority. The borough by ordinance directed the laying of a cement pavement, and in default of its being laid by the owner, did the work and fil d this lien. On the trial the court held that there being no evidence that the old cinder walk had been authorized by any municipal authority, that the borough had the right to do the work in default of the defendant doing it after notice, and file a lien against the premises fronting thereon for the most of it with twenty per centum added, and that too, without any evidence that it was out of repair. It is no doubt the law that a borough having authorized the laying of a side |