Opinion.

(5) Q. "Did you have any conversation with her at the time you paid that five hundred dollars?"

(6) Q. "At the time of this transaction do you or not know whether his wife had full power and authority to make a transaction of this kind with you?"

The second assignment of errors relates to the ruling of the court below in permitting the plaintiff to give the following testimony:

"Q. You heard the testimony of Mrs. Harris as to the conversation which she says took place between her, yourself and your husband at the husband's house sometime between the date of the execution of this note and the date of your husband's death (the date not being exactly fixed) in which she says that you or your husband there told her that the taking of this note from Charles Schagrin was for the purpose of making him the claimant against her for the one thousand dollars protested note? Did you have any such conversation with Mrs. Harris?

"Q. Did you have that conversation with Mrs. Harris?
"A. No, sir; I did not."

In explanation of this last question, we may say: Mrs. Harris is the sister of Abraham and Charles Schagrin. The claim of the defendant below was that Mrs. Harris being indebted to Abraham on her promissory note for one thousand dollars, he was induced to give his note to Abraham for a like sum in exchange for Mrs. Harris' note to him; but he was not to pay his brother Abraham anything unless and until he had collected the money from her on her note to him.

Chapter 537, Volume 16, Laws of Delaware, Revised Code of 1893, p. 798, provides:

That in actions or proceedings by or against executors, administrators, or guardians in which judgment or decree may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party."

Counsel for the defendant below presented several propositions in support of his contention that the court below erred in rejecting the said several questions propounded by him. We deem it unnecessary to consider all of them. Confining the opinion of the court to the assignments of error, it is sufficient to say that it was urged, in substance, that the said statute does not apply to transactions with or statements by an agent of the

Opinion.

deceased; that there was sufficient evidence before the court to show that Gertrude Schagrin was the agent of her husband in procuring the note sued upon; that the presence of the deceased when the note was delivered to his wife does not take the case out of the rule permitting transactions with and statements by an agent to be shown. Whether Mrs. Schagrin was the agent of her husband and had authority from him to transact his general business while he was sick, and particularly the kind of transaction in question, seems immaterial and irrelevant in the light of the testimony of the defendant below in relation to the giving of the note to his brother, the deceased, viz.:

"Q. Was this transaction, the giving of this note, with your brother or with his wife?

"A. Both together. They were sitting right there, she originated it; she started it; and I went inside and the whole three of us talked the matter

over.

"Q. To whom did you deliver this note afterwards made to you?
"A. To Mrs. Schagrin, right there."

This testimony is conclusive. It unmistakably shows that the transaction was with the deceased, in the presence of his wife, and not with the latter as his agent. So that with respect to the transaction, any relation of principal and agent which may have existed between the deceased and his wife was, for the time at least, suspended. Miller v. Stebbins, 77 Vt. 183, 59 Atl. 844.

The making and delivery of the note by the defendant below having been concluded with the deceased, the statute disqualifies the defendant from testifying to any conversation had with the deceased respecting the transaction. Mitchell's Adm'r v. Woodward, 2 Marv. 311, 43 Atl. 165; Lodge v. Fraim, 5 Penn. 353, 63 Atl. 233; Robinson v. Purnell, 5 Penn. 444, 62 Atl. 149.

[2] Conversations had by the defendant with the wife, in the absence of her husband, prior to, or at the time of the delivery of the note to her in the presence of the husband as testified to by the defendant, are immaterial and irrelevant. For reasons assigned the court below did not err in excluding the first five questions.

[3] The sixth question which was excluded is objectionable

Judgment Affirmed.

in that it calls for a conclusion of law rather than for facts; and there was no error in rejecting it.

[4] The questions and answers which are the grounds for the second assignment of error relate to an alleged conversation with Mrs. Harris and not with the deceased, and are clearly outside of the purview of the statute.

We find no substantial error in the record of the trial below, and the judgment of the court below is affirmed.

ROSIE OPPENHEIM US. WILMINGTON GAS COMPANY.

NEGLIGENCE-CONTRIBUTORY Negligence-Pleading.

A declaration charged, first, that defendant's servant, while engaged in defendant's business, left open a trapdoor in plaintiff's premises, negligently and carelessly; second, that such door was left open, unguarded, an unreasonable length of time; third, that defendant's servant negligently and carelessly failed to close the door; fourth, that he failed to close the door within a reasonable time; fifth, that he failed to leave the cellar within a reasonable time and to close the door upon leaving it-with three other similar counts. They did not allege that defendant's servant had permission to enter premises, but the last count alleged that defendant's servant entered the premises without any permission, and negligently and carelessly failed to close the door. Held, that the declaration was not demurrable, as showing that the plaintiff was guilty of contributory negligence as a matter of law in falling through such open door.

(March 8, 1915.)

Judges BOYCE and HEISEL Sitting.

Aaron Finger for plaintiff.

Herbert H. Ward (of Ward, Gray and Neary) for defendant.
Superior Court, New Castle County, March Term, 1915.

ACTION ON THE CASE (No. 77, January Term, 1914) by Rosie Oppenheim against the Wilmington Gas Company to recover damages for injuries sustained by plaintiff falling through a cellar doorway in the floor of a house on the premises of plain

Statement.

tiff, by reason of the alleged negligence of a servant of the defendant, while engaged ni and about the business of the defendant company.

General demurrer to the declaration in which it is averred in substance that on or about, etc., a servant of the defendant, while engaged in and about the business of the defendant, and in the course of his duty as such servant, etc., entered the premises of the plaintiff, on, etc., and requested permission to go down into the cellar thereof, in order to gain access to a meter of the defendant in the cellar of the property adjoining, the cellars of the two properties being communicating; that permission to enter the cellar, etc., for the purpose, etc., was thereupon granted, whereupon the said servant of the defendant, in the course of his said employment, etc., opened a door in the floor of said premises, etc., and proceeded to descend into the cellar of the said property by means of a stairway which was covered by said door in said floor; that the said door, etc., was located at a point in last mentioned premises where the light was very dim, that it then, etc., became and was the duty of the said defendant, by its said servant, to use due and proper care in descending into the said cellar to avoid causing injuries, etc., to the plaintiff; yet the said defendant, by its said servant, not regarding its said duty, etc., failed and neglected to exercise due and proper care, in that, as charged in the first count, the said defendant, by its said servant, then and there negligently and carelessly left the said door in, etc., open and unguarded, whereby and by reason of the said negligence, etc., the said plaintiff, while walking through the said last mentioned premises, and being ignorant of the fact that said door in said floor was open, etc., and while in the exercise of due care and caution, etc., fell into the opening in said floor leading, etc., and fell to and upon the ground of the cellar of said premises, whereby the said plaintiff sustained injuries, etc.

The charge of negligence in the remaining counts differs from the first as follows:

The second count alleges that the door was left open and unguarded an unreasonable length of time.

Opinion Demurrer Overruled.

The third count alleges that defendant's servant negligently and carelessly failed and omitted to close the door.

The fourth count alleges failure to close the door within a reasonable length of time.

The fifth count alleges failure of defendant's servant to leave the cellar within a reasonable time, and to close the door upon leaving the same.

The sixth, seventh and eighth counts are respectively similar to the third, fourth and fifth counts, excepting they do not allege that defendant's servant had permission to enter the premises.

The ninth count alleges that defendant's servant entered the premises "without the permission of the said plaintiff, or any one in said premises who was authorized to give such permission," and complains of the same negligence alleged in the third count.

HEISEL, J., delivering the opinion of the court:

Counsel for the demurrer contends that the declaration discloses circumstances, which, if proven, would impute to the plaintiff, contributory negligence as a matter of law. We think evidence could be admitted under the declaration that would not necessarily have that effect, and therefore, the question of contributory negligence is for the trial court to determine, on the evidence produced at the trial.

The demurrer is overruled.

STATE US. PETER KRAKUS, alias PETER Melba.

1. HOMICIDE-DEFINITION OF "HOMICIDE"-"FELONIOUS HOMICIDE". "Homicide" is the killing of one human being by another, and "felonious homicide" includes both murder of the first and second degrees.